DATE: 20021127

DOCKET: C35856

COURT OF APPEAL FOR ONTARIO

FINLAYSON, CHARRON and SIMMONS JJ.A.

B E T W E E N:

ZESTA ENGINEERING LTD.

Timothy Pinos and Jacqueline L. Wall for the appellants

Plaintiff (Appellant)

• and -

DAVID CLOUTIER, MICHAEL JEFFERIES, HI-CAP TECHNOLOGIES, GUISEPPE DURANTE, KEITH SANGER, JAMES WHITE and KELVIN TECHNOLOGIES INC.

Douglas Christie and Jill M. Knudsen for the respondents

Defendants (Respondents)

A N D B E T W E E N:

DAVID CLOUTIER, GUISEPPE DURANTE, KEITH SANGER and KELVIN TECHNOLOGIES INC.

Plaintiffs by Counterclaim (Respondents)

-and-

VINCENT EASTMAN, RUTH EASTMAN, MARCEL JONES, DONALD STEPHEN LOCK and ZESTA ENGINEERING LTD.

Defendants to the Counterclaim (Appellants)

Heard: September 16 and 17, 2002

On appeal from the judgment of Justice Blenus Wright dated February 22, 2001, reported at [2001] O.J. No. 621, 7C.C.E.L. (3d) 53 (S.C.J.).

ADDENDUM ON COSTS

BY THE COURT:

[1] On October 3, 2002, this court released its reasons for ordering a new trial in this matter and invited counsel to make written submissions as to costs. We have now considered those submissions.

[2] Following the release of our reasons, counsel sought leave to make further submissions on the scope of the new trial, more particularly whether it should include those claims that were not the subject-matter of the proceedings before this court. Leave to make further submissions was refused since this court was of the view that it had adequately addressed all substantive matters in its endorsement. For the guidance of the parties, it is our view that it stands to reason that our order setting aside the trial judgment and ordering a new trial extended only to those claims that formed the subject-matter of the appeal before this court. More particularly, no cross-appeal was taken from a) the award of damages against David Cloutier for secret commissions; b) the dismissal of the counterclaim against Vincent Eastman, Ruth Eastman, Marcel Jones and Donald Stephen Lock; or c) the dismissal of the counterclaim brought by Keith Sanger. Consequently those claims were finally adjudicated upon at the first trial as reflected in paragraphs 1, 2 and 3 of Wright J.’s judgment and that part of the judgment is not affected by the order of this court. It is our view, however, that the execution of paragraph 1 of the judgment in respect to the damage award against David Cloutier should be stayed pending final adjudication on the other claims involving David Cloutier at the new trial.

[3] Counsel also correctly noted in their submissions that a consequence of the order of this court setting aside the trial judgment and ordering a new trial is that the existing costs award of Wright J. with respect to the original trial is also set aside. The appellant seeks an order for its costs of the trial. In our view, it would not be appropriate for this court to make an award of costs in respect of the first trial. Rather, the costs of the first trial will be reserved to the presiding justice at the new trial.

[4] As indicated in our reasons for decision, the appellant is entitled to its costs of the proceedings in this court. Having considered the submissions of the parties, we hereby fix those costs on a partial indemnity basis at $36,000, all inclusive. Our reasons can be briefly stated. We have considered the bills of costs submitted by the appellant. However, we make no specific finding with respect to the amount of time spent or the rates charged by counsel. In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant. We note however that we have discounted the costs related to the investigation of the new evidence as it is our view that those costs should not form part of the costs award for the proceedings in this court. We note further that the costs are awarded in respect of the motion to introduce fresh evidence only. We do not find it appropriate to make an award of costs in respect of the appeal since it was not heard, or disposed of, on the merits. Nonetheless, in arriving at a reasonable quantum, we have taken into consideration the fact that the motion to introduce fresh evidence could not have been brought by the appellant independently of its appeal.

Released: November 27, 2002

“G.D.F.”

Signed : “G.D. Finlayson J.A.”

“Louise Charron J.A.”

“Janet Simmons JA.”