CITATION: D'Amore v. Russ, 2009 ONCA 352
DATE: 20090429
DOCKET: C49265
COURT OF APPEAL FOR ONTARIO
Juriansz, MacFarland and Watt JJ.A.
BETWEEN:
Patrick D’Amore, personally and on behalf of Danrus Construction Limited
Plaintiffs
and
Daniel Michael Russ, Danruss Contracting (1985 Windsor) Inc., Midcon Construction Ltd., Gloria Russ and Larry Colautti
Defendants
AND BETWEEN
Daniel Michael Russ
Plaintiff by Counterclaim
and
Patrick D’Amore, D’Amore, D’Amore Construction (Windsor) Limited, Precision Builders Limited, 6179063 Ontario Inc., and Patricia Oke
Defendants by Counterclaim
Luigi DiPierdomenico for the appellant (plaintiff) Patrick D’Amore
Myron Shuldan for the defendants
Heard and released orally: April 15, 2009
On appeal from the final order of Justice Steven Rogin of the Superior Court of Justice dated July 15, 2008.
ENDORSEMENT
[1] The order under appeal was made on a motion for directions to determine what amount, if any, remained payable to the appellant by the respondents on a judgment granted to the appellant after the trial of various issues. The judgment, which was approved by both parties, was ambiguous as to the interest payable. After the appellant filed and later abandoned an appeal, the motion judge was called upon to resolve the ambiguity.
[2] The motion judge observed that the trial judge made no specific award for pre or post judgment interest. He concluded that the judgment granted to the appellant did not provide for payment of a separate amount by way of post-judgment interest on the amount awarded to the appellant for damages and pre-judgment interest to the judgment date. The appellant did not take issue with this conclusion in oral argument, and we see no error in the motion judge’s disposition in this regard.
[3] The appellant did argue that the motion judge erred by finding that he was not entitled to interest on the judgment for the period of time during which the appellant’s appeal to this court was outstanding before being abandoned.
[4] This court will only interfere with a costs disposition of the court below in extraordinary circumstances. We have not been persuaded there is any basis for us to interfere in this case.
[5] Costs to the respondents are fixed on a partial indemnity scale in the amount of $7,500 including GST and disbursements.
“R.G. Juriansz J.A.”
“J. MacFarland J.A.”
“David Watt J.A.”