DATE: 20010511

DOCKET: C34631

COURT OF APPEAL FOR ONTARIO

FINLAYSON, CARTHY and AUSTIN JJ.A.

B E T W E E N:

WILLIAM JEFFREY PEET

Gordon S. McSevney, for the respondent

Plaintiff (Respondent)

• and -

BABCOCK & WILCOX INDUSTRIES LTD.

Douglas K. Gray, Stephen F. Gleave and Lisa J. Mills, for the appellant

Defendant (Appellant)

Heard: February 23, 2001

On appeal from the reasons for judgment of Justice Ronald C. Sills dated March 31, 1999, and from the supplementary reasons for judgment and the supplementary reasons for judgment with respect to costs of Justice Sills dated June 15, 2000 and July 4, 2000 respectively.

ADDENDUM ON COSTS

[1] Having read the submissions with respect to costs submitted in writing by the parties, we note that the second and best offer to settle made before trial by the appellant (defendant at trial) exceeded this court’s determination of the proper quantum of damages to be awarded to the respondent (plaintiff at trial), even after providing for prejudgment interest. Accordingly, on a plain application of Rule 49.10(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the respondent is entitled to party-and-party costs to the date the second offer was served (October 13, 1998) and the appellant shall receive its party-and-party costs of the trial from that date until the conclusion of the trial.

[2] In this court, the appellant achieved substantial success and is entitled to its costs of the appeal on a party-and-party basis.

Signed: "G.D. Finlayson J.A." "J.J. Carthy J.A." "Austin J.A."