DATE: 20030220

DOCKETS: C37783 and C38481

COURT OF APPEAL FOR ONTARIO

CATZMAN, ABELLA and CHARRON JJ.A.

B E T W E E N:

KEN AUDZISS, KEN GRIEVE, KEN SAWICKI, LEONARD ARNONE and ROD MUIR

Michael Cupello, for the applicants (appellants)

Applicants (Appellants)

• and -

ORVILLE SANTA

Francis J. Thatcher and Mary D. Bird, for the respondent (respondent)

Respondent (Respondent)

AND BETWEEN:

KENNETH AUDZISS

Appellant (Respondent) (Respondent in Cross-Appeal)

Michael Cupello, for the respondent (appellant)

• and -

ORVILLE SANTA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Respondents (Applicant/Respondent) (Appellant in Cross-Appeal)

Francis J. Thatcher and Mary D. Bird, for the applicant (respondent) Orville Santa

Heard: October 7, 2002

On appeal from the order of Justice G. Patrick Smith of the Superior Court of Justice dated January 29, 2002 and from the order of Justice Helen Pierce dated May 28, 2002.

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

BY THE COURT:

[1] On January 9, 2003, this court dismissed the appeals and the cross-appeals in these two proceedings. At the conclusion of our reasons, we invited the parties to make written submissions within a certain time frame in respect of the costs of the appeals. We have now received those submissions and we are in a position to dispose of the issue of costs.

[2] By letter dated February 12, 2002, the respondent asked that this court disregard the appellants’ written submissions on costs because they were filed 9 days late. Alternatively, he sought an extension of time to file reply submissions.

[3] We are not prepared to disregard the appellants’ written submissions as requested by the respondent. We have therefore extended the time for filing the written submissions and have considered them. However, as will soon become clear, since we do not accept the appellants’ submissions, it is not necessary for the respondent to file any reply.

[4] The gist of the appellants’ submissions is that there should be no award of costs because the appeals raised novel issues of statutory interpretation that required determination in the public interest. The appellants made no submissions on quantum.

[5] We do not accept the appellants’ position. The respondent was wholly successful on the appeals. We see no reason to depart from the usual principle that costs should follow the event.

[6] The respondent seeks his costs in both proceedings on a substantial indemnity basis. With respect to file no. C37783, he relies on three factors: his offer to settle the appeal on a no costs basis; the filing of voluminous and unnecessary exhibits by the appellants; and the absence of any valid grounds of appeal. With respect to file no. C38481, the respondent claims his costs on the higher scale because they were so awarded in first instance and this court did not interfere with that award. He claims further that he was prejudiced in responding to the appellants’ notice of appeal and factum because the documents were poorly prepared and did not inform him of the case he had to meet.

[7] First, we note that rule 49.10 in respect of offers to settle does not apply to appeals: see Jones v. Kansa General Insurance Co. (1992), 10 O.R. (3d) 56 (C.A.), supplementary reasons 10 O.R. (3d) 56 at p.66 (C.A.), leave to appeal to S.C.C. refused, 63 O.A.C. 399n. Second, we are not persuaded on any of the other grounds advanced that either proceeding warrants an award of costs on a substantial indemnity basis.

[8] We therefore award the respondent his costs of the appeals on a partial indemnity basis. We hereby fix those costs at $13,000 in file no. C37743 and $12,000 in file no. C38481, both amounts inclusive of disbursements and G.S.T. The latter amount includes the costs of the motion to consolidate the two appeals. We award no costs in respect of the cross-appeals.

Released: FEB 20 2003 Signed: “M.A. Catzman J.A.”

MAC “R.S. Abella J.A.”

“Louise Charron J.A.”