DATE: 20030912

DOCKET: C39789

COURT OF APPEAL FOR ONTARIO

RE:

MOHAMMAD MALIK, ASIFA MALIK, IMRAN MALIK and MOHAMMAD A. MALIK (Plaintiffs) (Respondents) – and – LAURENT G. SIROIS and GABRIEL MacCAUSLAND-SIROIS (Defendants) (Appellants)

BEFORE:

LASKIN, GOUDGE and ARMSTRONG JJ.A.

COUNSEL:

J. Douglas Wright

for the appellants

David R. Neill

for the respondents

HEARD & ENDORSED:

September 11, 2003

On appeal from the order of Justice William P. Somers of the Superior Court of Justice dated February 3, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge held that the lack of clarity in the appellants’ offer prevented it from attracting the cost consequences of Rule 49. That holding was made in the exercise of his discretion. Although another trial judge may have taken a different view of the offer, we can find no error in principle or other reviewable error in the exercise of the trial judge’s discretion. In particular, the wording of paragraph 2 and the absence of any reference to the Family Law Act claimant support the costs order that he made.

[2] Moreover, the trial judge’s holding affirms an important underlying policy of Rule 49: that especially in cases where there are multiple claimants, to be effective Rule 49 offers must be crystal clear.

[3] For these brief reasons the appeal is dismissed. The respondents are entitled to their costs of the appeal, including the leave motion, on a partial indemnity basis, which we fix in the amount of $7,500 inclusive of disbursements and G.S.T.