DATE: 20051004

DOCKET: C41719

COURT OF APPEAL FOR ONTARIO

RE:

CORPORATION OF THE TOWN OF ERIN (Plaintiff (Respondent)) – and – PAUL JOHN VIOLO AND 1232082 ONTARIO INC. (Defendants (Appellants))

BEFORE:

SIMMONS, LANG AND ROULEAU JJ.A.

COUNSEL:

Lubomir Poliacik

for the appellants

Douglas Hodgson and Andrea Hill

for the respondent

HEARD & RELEASED ORALLY:

September 27, 2005

On appeal from the judgment of Justice Lorna-Lee Snowie of the Superior Court of Justice dated March 25, 2004.

E N D O R S E M E N T

[1] The trial judge awarded the Town of Erin $67,821.67 on account of the costs of correcting a stone embankment erected by the appellants that the Town claimed was not erected in accordance with the terms of a site plan agreement. In addition, the trial judge awarded the Town costs of the action in the amount of $102,981.64.

[2] We see no error in the trial judge’s conclusion that the stone embankment was not erected in accordance with the terms of the site plan agreement. Paragraphs 8(b)(i) and 9(a)(i) of the site plan agreement are clear in requiring supervision by the appellants’ engineer and verification that the works were properly constructed. These requirements were not complied with. Importantly, the evidence also established ­­that the embankment was unstable and unsafe. Finally, there was ample evidence to support the trial judge’s conclusion that the Town did not waive compliance with the site plan agreement.

[3] In our view, s. 5(m)(i) of the site plan agreement clearly permits recovery by action of the costs of correcting the embankment. Further, we see no merit in the appellants’ assertion that the Town failed to mitigate its damages. While more economical options were a possibility, it was not established at trial that those options would resolve the problems with the stone embankment. Further, we are satisfied that there was evidence at trial that the Drexler invoices reflected the work necessary to correct the embankment and to access the worksite for that purpose.

[4] We agree that the trial judge erred in the exercise of her discretion in relation to costs. The respondent concedes that the partial indemnity component of the costs award should be reduced. On our review of the costs award claim, it does not reflect a fair and reasonable amount that the appellants should be required to pay even considering their conduct of the litigation.

[5] Accordingly we would set aside the amount awarded by the trial judge on account of costs and substitute an award of $60,000, inclusive of G.S.T. and disbursements. The appeal is otherwise dismissed.

[6] Costs of the appeal are awarded to the respondent in the amount of $5,000 on a partial indemnity scale inclusive of G.S.T. and disbursements.

“Janet Simmons J.A.”

“S. E. Lang J.A.”

“Paul S. Rouleau J.A.”