Southcott Estates Inc. v. Toronto Catholic District School Board

CITATION: Southcott Estates Inc. v. Toronto Catholic District School Board, 2010 ONCA 486

DATE: 2010-07-07

DOCKET: C50100

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and MacFarland JJ.A.

BETWEEN

Southcott Estates Inc.

Respondent (Plaintiff)

and

Toronto Catholic District School Board

Appellant (Defendant)

Counsel:

Andrew M. Robinson, Elizabeth Ackman and Andrea Farkouh, for the appellant

Milton A. Davis, J. T. Curry and David A. Vitale, for the respondent

Heard: April 15, 2010

On appeal from the judgment of Justice H. Spiegel of the Superior Court of Justice dated January 30, 2009, with reasons reported at 2009 CanLII 3567 (ON SC), 78 R.P.R. (4th) 285.

COSTS ENDORSEMENT

[1] We have now received and reviewed the parties’ submissions with respect to the trial costs.

[2] This was a 16 day trial involving relatively complex issues and considerable expert evidence. The trial judge found in favour of the appellant, awarded the appellant damages of $1,935,500 for breach of contract, and in view of the appellant’s success, awarded costs to the appellant in the amount of $679,077.01. We upheld the finding of breach of contract but allowed the appeal on the ground that the respondent had failed to mitigate its damages and reduced the damage award to nominal damages of one dollar.

[3] The appellant made an offer to settle well in advance of trial offering to pay the respondent $100,000 plus prejudgment interest plus partial indemnity costs. The respondent did not accept that offer.

[4] We can see no reason why the cost consequences specified in rule 49.10 (2) should not be applied. In the final result, the plaintiff-respondent obtained a judgment less favourable than the terms of the defendant-appellant’s offer which was made more than seven days before the commencement of trial and was not accepted by the plaintiff. Accordingly, the respondent is entitled to partial indemnity costs up to the date of the offer and the appellant is entitled to partial indemnity costs from that day forward.

[5] We allow the respondent $100,000 partial indemnity costs up to date of the offer to settle and the appellant $500,000 partial indemnity costs incurred after the offer to settle for a net award to the appellant of $400,000 all inclusive.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“J. MacFarland J.A.”