COURT OF APPEAL FOR ONTARIO

DATE: 20061110

DOCKET: C44710

RE: FREDERICK COGAN (Plaintiff (Respondent)) – and – RODOLPH WILFRED GROULX (Defendant (Appellant))

BEFORE: MOLDAVER, SIMMONS and GILLESE JJ.A.

COUNSEL: Graham E.S. Jones for the appellant

Russell Kronick for the respondent

HEARD & ENDORSED: November 7, 2006

On appeal from the decision of Justice Paul F. Lalonde of the Superior Court of Justice dated December 9, 2005.

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

[1] No objection being taken by the respondent, the order below is varied to clarify that no post-judgment interest is payable.

[2] We would not give effect to the other grounds of appeal. While we agree that the motions judge erred when he said that costs should “be assessed without regard to what amount was sued for or accepted by way of settlement”, we are nonetheless satisfied that the assessment officer’s original figure was reasonable in the circumstances and that the assessment officer erred in law when he concluded that based on the principle of proportionality, costs could not exceed the amount of the settlement. Ingold v. Buchko, [1999] O.J. No. 2707 does not stand for that proposition.

[3] In the result, the appeal is allowed in part. The order below is varied to give effect to these reasons.

[4] Costs to the respondent on a partial indemnity basis fixed at $4,775.38 inclusive of disbursements and G.S.T.