Court File and Parties

Docket: C38458 Date: 2004-02-03 Court of Appeal for Ontario

Re: Robert McGuffin (Plaintiff (Respondent)) – and – Terry Howald Pools Inc. (Defendants (Appellant))

Before: McMurtry C.J.O., Rosenberg and Gillese JJ.A.

Counsel: Gary Petker, for the appellant Teresa Cheung, for the respondent

Heard: December 18, 2003

Endorsement

Released: December 22, 2003

Endorsement As To Costs

[1] In our endorsement allowing this appeal in part, we awarded the appellant costs of the appeal and invited the parties to provide submissions with respect to the costs of the trial. We have now received those submissions. The appellant submits that the respondent should be deprived of his costs in accordance with former rule 76.10 because as a result of our decision the respondent/plaintiff obtained a judgement of $25,000. Rule 76.10(2) provided that the plaintiff shall not recover any costs unless the action was under the simplified procedure at the commencement of the trial or “the court is satisfied that it was reasonable for the plaintiff to have commenced and continued the action under the ordinary procedure”.

[2] We are satisfied that it was reasonable for the respondent to have commenced and continued the action under the ordinary procedure. The respondent’s original claim was for $70,000 and at trial he obtained an award of $54,980.34. The original claim was based on bona fide estimates from contractors of the cost of replacing the work originally performed by the appellant.

[3] Accordingly, we would not interfere with the costs award made at trial.

Signed: “McMurtry C.J.O.” “M. Rosenberg J.A.” “E.E. Gillese J.A.”