DATE: 20021105 DOCKET: C36215

COURT OF APPEAL FOR ONTARIO

RE: AGRICULTURAL RESEARCH INSTITUTE OF ONTARIO and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Appellants) v. KAREN CAMPBELL-HIGH and DANIEL DEAN HIGH (Respondents)

BEFORE: ABELLA, CHARRON and CRONK JJ.A.

COUNSEL: D. Thomas H. Bell, for the appellants

Joseph M. Gottli, for the respondents

HEARD: January 21, 2002

On appeal from the order of Justice R.T. Patrick Gravely dated February 2, 2001, reasons reported at [2001] O.J. No. 460.

ADDENDUM TO JUDGMENT

[1] [1] Further to the reasons for judgment in this matter issued on March 14, 2002, we have received the written submissions of the parties concerning costs. At the conclusion of our reasons, we ordered the Crown to pay the costs of this appeal.

[2] [2] The respondents seek costs of this appeal, and of the appeal to the Superior Court of Justice from the decision of the arbitrator, on a full indemnity basis in reliance on the terms of the contract entered into by them with the Crown for the purchase by the Crown of a restrictive covenant on the respondents’ lands. That contract provided for full recovery of legal costs by the “prevailing party” in the event of a dispute arising under the contract.

[1] [3] The central issue on this appeal was whether the respondents were entitled to damages equal to the value of the restrictive covenant. They were not successful on this ground and, therefore, cannot be said to be the “prevailing party” within the meaning of that term under section 3.7 of the contract. Accordingly, an award of full indemnity for costs is not appropriate.

[2] [4] In addition, and in any event, the costs sought by the respondents in this proceeding are excessive having regard to the matters at issue and the fact that argument of the same issues took place on the lengthy appeal before Gravely J. Counsel for the respondents on this appeal also appeared for the respondents before Gravely J. In our view, the costs claimed for the proceeding before Gravely J. are also excessive.

[3] [5] In all of the circumstances, we conclude that the respondents are entitled to a portion of their costs on a partial indemnity basis, fixed in the amount of $20,000 for the appeal before Gravely J. and $12,500 for this appeal, inclusive of Goods and Services Tax and disbursements.

“R.S. Abella J.A.”

“Louise Charron J.A.”

“E.A. Cronk J.A.”