Court of Appeal for Ontario

Date: 2006-04-13 Docket: C42746

Re: Grant Henry Lowndes (Plaintiff (Respondent)) – and – Summit Ford Sales Limited, Summit Ford Sales (1982) Limited, Leslie Vickers, Marjorie Vickers, Scott Vickers and Brian Vickers (Defendants (Appellants))

Before: McMurtry C.J.O., Sharpe and Cronk JJ.A.

Counsel: Charles M. Loopstra, Q.C. and Sean C. Doyle for the appellants Anthony M. Speciale for the respondent

Heard: December 12, 2005

On appeal from the judgment of Justice Nancy M. Mossip of the Superior Court of Justice dated November 12, 2004.

COSTS ENDORSEMENT

[1] Further to this court’s reasons for judgment in this matter released on January 6, 2006, we have now received and reviewed the written submissions of the parties on the costs of this proceeding.

[2] Although several issues were raised by the appellants in their notice of appeal, four principal grounds of appeal were argued before this court. Of these, the appellants were successful on the issues of the base period of reasonable notice of termination of employment and the proper approach to the calculation of prejudgment interest in this case. However, the respondent was successful in resisting the appellants’ challenges of the trial judge’s award of “Wallace” damages and his assessment of the respondent’s entitlement to bonus compensation following his dismissal.

[3] In our view, no circumstances exist in this case warranting a departure from the general rule that where success on appeal is substantially divided, as in this case, an award of costs of the appeal will not be made. In this regard, the measure of success on appeal is not to be gauged solely by reference to the claimed monetary value to the parties of each of the issues in contention. Nor is it appropriate to adopt what is tantamount to a distributive costs award approach, as essentially urged by the respondent.

[4] Although offers to settle appeals do not fall within the scope of Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, we have exercised our discretion to consider the settlement offer made by the respondent in respect of this appeal: see Douglas Hamilton Design Inc. v. Mark, [1993] O.J. No. 1856 (C.A.) and s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In our view, that offer did not propose a sufficiently meaningful compromise of the appeal as to warrant an award of costs of the appeal in favour of the respondent.

[5] Finally, as the appellants do not seek to vary the trial judge’s award of costs of the trial to the respondent, we would not interfere with that award.

[6] Accordingly, taking all relevant factors into account, we conclude that a fair and reasonable disposition is to exercise our discretion to award no costs of the appeal and we so order.

“R.R. McMurtry C.J.O.”

“R.J. Sharpe J.A.”

“E.A. Cronk J.A.”