DATE: 20050630

DOCKET: C40801

COURT OF APPEAL FOR ONTARIO

RE:

ALAN WEBSTER FAMILY TRUST (Appellant/Plaintiff) – and – MIDLAND WLAWYN CAPITAL INC. and GEORGE JOWITT (Respondents/Defendants)

BEFORE:

CATZMAN, SIMMONS, BLAIR JJ.A.

COUNSEL:

Peter Jervis

for the appellant

Tamara B. Center

for the respondent

HEARD & ENDORSED:

June 29, 2005

On appeal from the judgment of Justice Janet M. Wilson of the Superior Court of Justice dated January 28, 2002.

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

[1] The plaintiff appeals from the costs award made by Wilson J. after a trial over nine days for a broker’s failure to carry out trading instructions. The trial was hard fought and defended aggressively. Because of favourable offer to settle, the trial judge awarded costs to the plaintiff on a party and party basis up to the date of the offer and solicitor-client costs thereafter. However, when the plaintiff submitted its Bill of Costs on that basis in the total amount of $182,183.00, the trial judge ruled that “the amount claimed for costs is excessive and out of all reasonable proportion to the amount in dispute and the complexity of the issues.” She reduced the bill to $50,000 inclusive of GST.

[2] In our view, the trial judge erred in this regard. Having awarded costs (for the most part) on a solicitor-client basis, she in effect fixed the costs upon the application of party and party principles. Solicitor-client costs are intended to provide full indemnity for all costs reasonably incurred. Here, the trial judge was of the view that the trial should have been considerably shorter, but she conducted no analysis as to what conduct on the part of the plaintiff contributed to the unwarranted length. If anything, her reasons suggest the undue length was attributable to the defendants’ aggressive approach. We can see no basis why, having been awarded solicitor client costs, the plaintiff was not entitled to the benefit of the full indemnity scale of costs it was awarded.

[3] In terms of the plaintiff’s Bill of Costs, the respondent voiced some complaint about the rate charged for Mr. Jervis ($450-$475), the use of clerks and the costs of mediation. Our options are to fix the costs ourselves, send the matter back to the trial judge, or refer the matter to assessment. It is obvious that there needs to be an end to the litigation in this matter and we see no advantage in referring it elsewhere. Taking a practical approach, and giving some consideration to the respondent’s concerns about the Bill, we fix the costs of the trial at $155,000 all inclusive. Post-judgment interest is payable on this amount from April 23, 2003.

[4] Costs of the appeal (including motions) are fixed in the amount of $10,000 plus disbursements plus GST.