- DATE: 20020403 DOCKET: C33134
COURT OF APPEAL FOR ONTARIO
RE:
SHIRLEY MARSHALL (Plaintiff/Respondent) v. WATSON WYATT & CO. c.o.b. WATSON WYATT WORLDWIDE (Defendant/Appellant)
BEFORE:
CARTHY, LASKIN and GOUDGE JJ.A.
COUNSEL:
Geoff R. Hall and Michally A. Iny
for the appellant
Davis Harris and K. Alexander
for the respondent
HEARD:
December 14, 2001
On appeal from the judgment of Justice Lynda C. Templeton, with a jury, dated October 27, 1999.
ENDORSEMENT ON COSTS
[1] As both parties acknowledge, the order for costs made by the trial judge should stand. On January 29, 1999, Ms. Marshall made an offer to settle for $275,000 plus interest. This court’s decision reduced Ms. Marshall’s damages award to $394,884.52 plus interest, a figure that still exceeded her offer to settle. Therefore, as the trial judge ordered, Ms. Marshall is entitled to party and party costs from the commencement of the action to January 29, 1999 and to solicitor and client costs afterwards.
[2] The parties do not agree on the appropriate costs order for the appeal. Ms. Marshall submits that she is entitled to the costs of the appeal, either on a solicitor and client or party and party basis. She points to a settlement offer that she made before the appeal in which she agreed to give up her award for punitive damages. Watson Wyatt, on the other hand, submits that as it was partially successful on the appeal it is entitled to one-half of its party and party costs. It points out that it succeeded not only on the punitive damages award but also on the Montreal commissions issue.
[3] We think it appropriate to award Watson Wyatt one-third of its party and party costs of the appeal. Watson Wyatt raised six issues on the appeal, each attacking a different aspect of Ms. Marshall’s damages award. It succeeded on two of the issues but was unsuccessful on four of them. Because the appeal succeeded in part, Watson Wyatt is entitled to a portion of its costs. Ms. Marshall’s offer to settle does not assist her because it did not address the Montreal commissions issue.
[4] Accordingly, Ms. Marshall shall pay Watson Wyatt one-third of its party and party costs of the appeal.
“J.J. Carthy J.A.”
“J.I. Laskin J.A.”
“S. Goudge J.A.”