Court File and Parties

DATE: 20011108
DOCKET: C33757

COURT OF APPEAL FOR ONTARIO

RE: TECHFORM PRODUCTS LIMITED (Plaintiff/Appellant) v. TIETE O. WOLDA (Defendant/Respondent)

AND RE: TIETE O. WOLDA (Plaintiff by Counterclaim/Respondent) v. TECHFORM PRODUCTS LIMITED and M&C CORPORATION (Defendants by Counterclaim/Appellants)

BEFORE: CHARRON, ROSENBERG and GOUDGE JJ.A. (In Writing)

COUNSEL: John R. Morrisey, for the appellants Peter F. Kappel, for the respondent

SUPPLEMENTARY REASONS

[1] In our reasons of October 1, 2001, we invited counsel to make submissions concerning the costs of the trial. We have received lengthy submissions and voluminous material concerning the conduct of the trial and the several offers made by both parties. The following is our disposition of the matters raised in these submissions.

[2] If so advised, Mr. Wolda is entitled to a Reference to determine what damages, if any, he sustained by reason of the non-competition term in the interim injunction granted by Dambrot J.

[3] The issue of costs of the summary judgment motion and appeal has been dealt with in previous orders and is not open to further argument at this point.

[4] The appellant has established that the judgment is more favourable than its offer of November 19, 1999. Under the offer, Techform agreed to pay Mr. Wolda $200,000, the parties would bear their own costs, and Techform would own the 3-D Hinge. As a result of the appeal, Techform obtained a judgment with the same or more favourable relief. The offer required Wolda to provide an undertaking not to disclose confidential information and deliver up some documents and other things. While Wolda succeeded on the confidential information issue at trial, that issue played only a minor part in the trial and was of trivial monetary value when compared to Techform’s November offer to pay $200,000.

[5] Accordingly, we are satisfied that the cost consequences of Rule 49.10 have been triggered. We have not been persuaded that there is any reason to depart from the effect of that rule in this case. In particular, we are not persuaded that the complexity of the proceedings is reason to depart from the effect of Rule 49.10. There is nothing in Techform’s conduct of the proceedings that would lead to a different result.

[6] Accordingly, Techform shall have its costs of the trial, if demanded, as assessed on a party-and-party basis from the commencement of the action to November 19, 1999, and thereafter on a solicitor and client basis.

[7] We have already dealt with the costs of the appeal and cross-appeal in the reasons for judgment of October 1, 2001.