DATE:20021104 DOCKET: C29291

COURT OF APPEAL FOR ONTARIO

WEILER, CHARRON and SHARPE JJ.A.

BETWEEN:

FERME GÉRALD LAPLANTE & FILS LTÉE

Ronald H. Caza and Pierre Champagne, for the respondent

Plaintiff (Respondent)

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GRENVILLE PATRON MUTUAL FIRE INSURANCE COMPANY

Earl A. Cherniak, Q.C., Kirk F. Stevens and Pamela Foy, for the appellant

Defendant (Appellant)

Heard: June 3, 2002

On appeal from the judgment of Justice Bernard Joseph Manton, sitting with a jury, dated February 13, 1998.

A D D E N D U M O N C O S T S

BY THE COURT:

[1] [1] Following the release of our judgment in this matter, we have received and considered the written submissions of the parties on costs. In light of her dissenting opinion, Weiler J.A. takes no part in this court’s decision on costs.

[2] [2] We see no merit to the respondent’s contention that, regardless of the result, it should be entitled to its costs to the appeal. The appellant achieved substantial success on its appeal and should be awarded its costs accordingly. However, we would reduce the appellant’s bill of costs in the following respects.

[3] [3] First, the appellant raised many issues with respect to the compensatory damages. We accept that the appellant may have had tactical reasons for raising these issues and that some of the same evidence would have required consideration even if the appellant had sought only to overturn the award of punitive damages. However, it is nonetheless our view that this widened the scope of the appeal and that the resulting costs should not be passed on to the respondent. Therefore, on that basis, we would reduce the bill of costs by $15,000.

[4] [4] Second, it is our view that the total amount of $30,074 claimed for the preparation of the factum is excessive from the perspective of an award for partial indemnity. We accept that circumstances required that some revisions to the initial factum be made. However, having regard to the type of changes that had to be made and the ultimate value to the client, we would reduce the amount claimed for the factums by a further $15,000.

[5] [5] Finally, we find the total amount claimed for the time spent by the three counsel who were involved in this matter cannot be justified for the purposes of a partial indemnity award. Consequently, we would reduce the counsel fee for second counsel from $270 per hour to $250 per hour, thereby reducing the bill of costs by a further $3,364. We would also reduce the counsel fee for the attendance of the second counsel by $1,000.

[6] [6] In the result, the appellant is awarded its costs for the appeal, fixed in the sum of $56,770.77.

Released: November 4, 2002

Signed: “Louise Charron J.A.”

“Robert J. Sharpe J.A.”