DATE: 20011220
DOCKET: C34657

COURT OF APPEAL FOR ONTARIO

RE:

KARL E. WESELAN (Appellant/Plaintiff) v. TOTTEN SIMS HUBICKI ASSOCIATES (1997) LIMITED (Respondent/Defendant)

BEFORE:

MORDEN, AUSTIN AND BORINS JJ.A.

COUNSEL:

Catherine M. Patterson

for the appellant

John W. Montgomery

for the respondent

HEARD:

Written submissions filed in November, 2001

On appeal from the judgment of Justice Gordon G. Nicholls dated June 22, 2000.

E N D O R S E M E N T

[1] We agree with the submissions respecting costs made on behalf of the respondent. The fact that there were in existence offers to settle which could have affected the costs disposition at trial should have been brought to this court’s attention when judgment was given orally on August 14, 2001. If the court had been informed of the existence of offers, it would have made the appropriate costs disposition at that time.

[2] We amend paragraph 7 in our endorsement of August 14, 2001 to provide that the costs of the trial are to be decided by the judge presiding at the new trial. He or she will be in a position to determine the appropriate application of rule 49.10 in light of the determination of the amount of damages. This, of course, is without prejudice to the service of new offers relating to the new trial. The order respecting the costs of the appeal shall stand.

“J. W. Morden J.A.”

“A.M. Austin J.A.”

“ S. Borins J.A.”