CITATION: Drouillard v. Cogeco Cable Inc., 2007 ONCA 485
DATE: 20070628
DOCKET: C44042
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., FELDMAN and ROULEAU JJ.A.
BETWEEN:
KEVIN DROUILLARD
Respondent (Appellant by Cross-Appeal)
and
COGECO CABLE INC.
Appellant (Respondent by Cross-Appeal)
Adrian Miedema for the appellant
Raymond Colautti and Anita Landry for the respondent
Heard: January 26, 2007
On appeal from the judgment of Justice Richard C. Gates of the Superior Court of Justice dated July 26, 2005.
ENDORSEMENT RE COSTS
[1] Reasons for judgment were released on May 1, 2007. The parties were asked to make written submissions on costs.
Cogeco’s Submissions
[2] Cogeco submits that it was largely successful on appeal as the judgment was reduced by almost half and it was totally successful on the cross-appeal. Cogeco therefore argues that it ought to be awarded costs of the appeal fixed at $20,000. To this figure should be added the following:
- Costs of filing a supplementary factum pursuant to the endorsement of Weiler J.A.
$3,392.70
- Costs of the respondent’s motion for leave to amend the notice of cross-appeal
$1,500.00
- Costs of the respondent’s motion to tender “fresh evidence” on appeal
$5,000.00
TOTAL
$9,892.70
[3] The total in costs requested for the appeal is $29,892.70.
[4] With respect to the trial costs, Cogeco submits that in light of its partial success on appeal, the trial judge’s cost award of $146,108.35 should be reduced to $80,000.
[5] The trial judge had based his cost award principally on the following two factors:
The judgment exceeded Drouillard’s settlement offer. As a result, substantial indemnity costs were appropriate from the date of the offer until completion of the trial.
Cogeco’s pre-litigation conduct “was in fact the sole cause” of the litigation. Substantial indemnity costs were therefore warranted for the work done by Drouillard’s lead counsel. The trial judge also expressed concern over the apparent destruction of a witness’ notes.
[6] The decision by this court on appeal reduced the award such that the judgment obtained by Drouillard no longer exceeds the settlement offer. This removes one of the bases for the award of substantial indemnity costs. Further, Cogeco submits that the trial judge erred in using pre-litigation conduct to justify the award of substantial indemnity costs for a portion of Drouillard’s solicitor’s fees. Additionally, this is not one of the rare and exceptional cases where a party’s conduct in the litigation is reprehensible and justifies the unusual sanction of substantial indemnity costs: see Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.).
[7] Finally, Cogeco submits that an award of $146,108.35 in costs is out of proportion to the $107,544.77 recovered which is far below the $637,122.00 Drouillard had claimed at trial for future wage losses.
Drouillard’s Submissions
[8] Drouilllard maintains that, on appeal, he was successful on the critical issue of liability. In fact, he submits that he was successful on ten out of eleven grounds of appeal advanced. As a result, Drouillard submits that he ought to be awarded $17,764.36 in costs for the appeal. This represents approximately 60% of his partial indemnity bill of costs.
[9] Drouillard argues that the costs being claimed by Cogeco for the filing of a supplementary factum and the motion for leave to tender “fresh evidence” are excessive and ought to be reduced to $1,500 and $2,000 respectively. With respect to the motion for leave to amend the notice of cross-appeal, Drouillard submits that he was successful on this motion and, rather than paying costs, should be awarded costs in the amount of $1,500.
[10] With respect to the trial costs, Drouillard submits that the trial judge’s award was fair and reasonable. It properly took into account Cogeco’s bad conduct both before and during the trial.
Award of Costs
[11] We agree that the trial costs should be adjusted to reflect that, as a result of the appeal, Drouillard’s judgment is lower than the settlement offer he made. Further, we do not agree that the pre-litigation conduct, which the trial judge said was “in fact the sole cause” of the litigation, is a sufficient basis to award substantial indemnity costs. Nor do we believe that Cogeco’s conduct during trial warranted such an award. As a result, we would change the basis on which trial costs were calculated to partial indemnity and fix the costs at $110,000 inclusive of GST and disbursements.
[12] With respect to the costs of the appeal, we view the result as one of mixed success. Although Cogeco succeeded on only one of the grounds of appeal advanced, it was a very significant one. Cogeco was also successful in resisting the cross-appeal. Drouillard, for his part, succeeded on liability and has maintained a very substantial award. We would normally award Drouillard some costs but, in light of Cogeco’s entitlement to the costs of filing a supplementary factum and the costs of Drouillard’s motion for leave to amend the cross-appeal and to tender fresh evidence, we will offset these amounts and make no award of costs for the appeal and motions.
[13] In conclusion the respondent is awarded $110,000 in trial costs inclusive of GST and disbursements. There will be no costs for the appeal and motions brought in the Court of Appeal.
“D. O’Connor A.C.J.O.”
“K. Feldman J.A.”
“Paul Rouleau J.A.”