DATE: 20050913

DOCKET: C41428

COURT OF APPEAL FOR ONTARIO

RE:

JOHN MCMANUS (Respondent (Plaintiff)) – and – G.R. FELDMAN INVESTMENTS LTD. (Appellant (Defendant))

JOHN MCMANUS (Cross-Appellant (Plaintiff) – and - G.R. FELDMAN INVESTMENTS LTD. (Respondent in the Cross-Appeal (Defendant))

BEFORE:

ROSENBERG, GOUDGE and FELDMAN JJ.A.

COUNSEL:

Frank J. Kosturik and Derek V. Abreu

for the appellant and respondent in cross-appeal G.R. Feldman Investments Ltd.

Eric R. Murray, Q.C., Ranjan Das

and Brian Nicholson for the respondent/cross-appellant John McManus

HEARD & RELEASED ORALLY:

September 7, 2005

On appeal from the judgment of Justice Randall Echlin of the Superior Court of Justice, sitting with a jury, dated October 20, 2003.

E N D O R S E M E N T

[1] While the answer to Question No. 11 could have been clearer, we are satisfied that the jury must have found an independent actionable wrong from the continuing failure of the appellant to maintain and repair the apartment despite the many and constant complaints about the state of disrepair and even after the very serious incidents. This was a course of conduct that the jury found to be highly reprehensible and to have departed to a marked degree from ordinary standards of decent behaviour.

[2] The charge to the jury was essentially in conformity with paragraph 84 of Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 and we note that it was the respondent’s counsel who objected to the charge on punitive damages while the appellant’s counsel had no objection.

[3] That said, the trial judge should have identified for the jury the legal basis of the independent actionable wrong. It would then have been for the jury to set out the facts that constitute the independent actionable wrong. In this case, however, it is possible to identify the independent actionable wrong and the jury’s reasons for making the award they did. Accordingly the appeal is dismissed.

[4] As to the cross-appeal, we are satisfied that leave to appeal costs should be granted. In our view, the trial judge erred in principle in failing to properly apply rule 49.10 in light of the offer to settle. The judgment exceeded the plaintiff’s second offer to settle and the plaintiff was therefore prime facie entitled to costs on the substantial indemnity basis from that point forward. There was no reason not to award costs in accordance with rule 49.10. This was a hard fought case and no indication that the plaintiff was responsible for the length of the trial. In fairness to the trial judge, it is apparent from the dialogue with counsel that he was influenced by the decision at the trial level in Alan Webster Family Trust v. Midland Walwyn Capital Inc., [2003] O.J. No. 1586. That decision has since been overturned by this court at [2005] O.J. No. 2731.

[5] Accordingly, we would allow the cross-appeal and fix costs of the trial at $160,000 inclusive of GST and disbursements. Costs of the appeal and cross-appeal to the respondents fixed at $25,000.

Signed: “M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”