DATE: 20061215

DOCKET: C45027

COURT OF APPEAL FOR ONTARIO

RE: KANDY LYNN DEMARCO known as KANDY LYNN MEIXNER (Applicant/Respondent) – and MARK DEMARCO (Respondent/Appellant)

BEFORE: MCMURTRY C.J.O., GILLESE and ARMSTRONG JJ.A.

COUNSEL:

James H. Herbert for the appellant

Malte Von Anrep for the respondent

HEARD & RELEASED ORALLY: December 14, 2006

On appeal from the order of Justice Thomas R. Lofchik of the Superior Court of Justice dated February 1, 2006.

E N D O R S E M E N T

[1] Mr. DeMarco was represented by counsel at the oral hearing of this matter. At that time, counsel advised the court that the appeal was proceeding only in respect of the costs order against the appellant – that is, in respect of paras. 2 and 3 of the order of Lofchik J., dated February 1, 2006 (the “Order”).

[2] We are satisfied that the trial judge erred in concluding that the respondent’s Offer to Settle was better than the result achieved after trial. For the purposes of comparing the result at trial with the Offer, it was necessary to factor in the effects of the respondent’s income tax appeal. That matter was contemplated by the parties and the trial judge at the time the trial order was made. Once the results of the tax appeal are considered, it is apparent that the Offer was not more favourable to the respondent than the overall result that she obtained.

[3] As the stated basis for the costs award below was in error, that award cannot stand. Paragraphs 2 and 3 of the Order shall be set aside.

[4] This court is not in a position to consider the requisite factors and properly decide the matter of costs below. If the parties are unable to resolve that matter between themselves, it is remitted to the trial judge.

[5] Costs of the appeal to the appellant, fixed in the amount of $1500, inclusive of GST and disbursements.

“R. Roy McMurtry C.J.O.”

“E. E. Gillese J.A.”

“Robert P. Armstrong J.A.”