COURT OF APPEAL FOR ONTARIO

CITATION: Rizzi v. Mavros, 2008 ONCA 412

DATE: 20080526

DOCKET: C44688

BEFORE: LASKIN, LANG and JURIANSZ JJ.A.

BETWEEN:

DEBBIE RIZZI and DELIO RIZZI

Plaintiffs (Appellant)

and

GEORGE MAVROS and THOMAS PARTALAS

Defendants (Respondents)

COUNSEL:

Karl Arvai and Chris Nicolis for the appellant

Douglas A. Wallace for the respondents

Heard: October 30, 2007

On appeal from the judgment and order of Justice T. David Little of the Superior Court of Justice dated December 2, 2005 and January 6, 2006 respectively.

ENDORSEMENT RE COSTS

[1] In our view, this Court is not precluded from considering the proper disposition of the trial costs. The reasons on the merits of the appeal specifically addressed the challenges to the costs award subject to the caveat “that the costs appeal ha[d] not been rendered moot by the increased award for non-pecuniary damages”. Counsel agree that costs appeal was rendered moot because the appeal result changed the award to the appellant from $236,494.91 at trial to $251,449.46 after the appeal. The damages award now exceeds the respondents’ $250,000 offer to settle.

[2] In these circumstances, we see no reason why the ordinary rule for costs would not apply. Counsel have apparently been unable to agree on the amount of trial costs from October 27, 2005 forward. Accordingly, we would award costs to the appellant on a partial indemnity basis and refer those costs for assessment.

[3] The respondents do not take issue with the appellant’s submissions regarding the $900 awarded for costs submissions at trial, which we would award to the appellant.

[4] We would vary the trial judgment to accord with this endorsement.

“John Laskin J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”