Granger v. Granger
[Indexed as: Granger v. Granger]
Ontario Reports
Court of Appeal for Ontario
Cronk, Juriansz and D.M. Brown JJ.A.
February 9, 2017
135 O.R. (3d) 479 | 2017 ONCA 110
Case Summary
Civil procedure — Costs — Substantial indemnity costs — Plaintiff successful on appeal and awarded damages in excess of his pre-trial offer to settle — Plaintiff entitled to costs on substantial indemnity basis from date of offer to settle but costs reduced to reflect fact that trial was not unqualified success for plaintiff even in light of corrections made on appeal.
The plaintiff was successful on appeal and was awarded damages which significantly exceeded his pre-trial offer under Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Held, the plaintiff should be awarded his costs of the trial.
The plaintiff was entitled under rule 49.10 to costs on a substantial indemnity basis from the date of the offer. However, a significant portion of the trial was devoted to testing claims by the plaintiff which the trial judge found to be untrue. Many of those findings were undisturbed on appeal. The costs award should be adjusted to reflect that fact.
Cases Referred To
Rules and Regulations Referred To
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 49, 49.10
Ruling on Costs
Counsel:
Saba Ahmad and Michael Hackl, for appellant.
Bruce Baron and Maija Pluto, for respondents.
1Costs endorsement BY THE COURT: On appeal, this court concluded the appellant should have been successful at trial and awarded him damages in the amount of $438,113, in addition to other relief.
2Before trial, the appellant made a Rule 49 offer to settle for $180,000. He is entitled to the application of rule 49.10. As Morden J.A. noted in Niagara Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd. (1987), 58 O.R. (2d) 773, [1987] O.J. No. 2239 (C.A.), at p. 777 O.R., rule 49.10 is "intended to be an incentive to the settlement of litigation . . . the occasions for the application of the exception should not be so widespread or common that the result would be that the general rule is no longer, in fact, the general rule". It should only be departed from where "the interests of justice require a departure".
3This is not one of the unusual cases in which the general rule should not be applied. The appellant is entitled to partial indemnity costs to September 10, 2015, the date of his Rule 49 offer, and to substantial indemnity costs thereafter to the end of the trial.
4However, we also agree with respondents' counsel that a significant portion of the trial was devoted to testing claims the appellant made which the trial judge found to be untrue. Many of those findings were undisturbed on appeal. In other words, even in light of the corrections this court made on appeal, the trial was not an unqualified success for the appellant. The costs award must reflect this.
5After reviewing counsel's detailed bill of costs, and taking into account the factors above, we conclude the appellant is entitled to partial indemnity costs to September 10, 2015 in the amount of $35,000 and substantial indemnity costs from September 10, 2015 to the end of trial in the amount of $32,000. The appellant's costs for the proceedings below are fixed in the amount of $67,000, inclusive of disbursements and applicable taxes below.
6The appellant's costs of the appeal are fixed in the amount of $15,000, including disbursements and applicable taxes.
Order accordingly.
End of Document