CITATION: Piresferreira v. Ayotte, 2010 ONCA 607

DATE: 20100920

DOCKET: C49859

COURT OF APPEAL FOR ONTARIO

Cronk, Lang and Juriansz JJ.A.

BETWEEN

Marta Piresferreira and Judy Scott

Plaintiffs (Respondents)

and

Richard Ayotte and Bell Mobility Inc.

Defendants (Appellants)

Ronald Caza and Denis Boivin, for the appellants

John Yach, for the respondents

Heard: December 2, 2009

On appeal from the judgment and costs order of Justice Catherine D. Aitken of the Superior Court of Justice, dated June 9, 2009, with reasons for judgment reported at (2008), 2008 ONSC 67418, 72 C.C.E.L. (3d) 23 and reasons for costs order reported at (2009), 2009 ONSC 29910, 74 C.C.E.L. (3d) 303.

COSTS ENDORSEMENT

[1] The appellants were largely but not entirely successful on appeal and were awarded $20,000 for the costs of the appeal, including disbursements and GST. As the result of the appeal, the respondents’ damages were reduced to a total of $147,855 from $500,955. The parties made written submissions regarding the costs of the trial.

[2] The trial judge awarded the respondents costs of $225,000, inclusive of GST and disbursements. She based that award on partial indemnity costs to February 17, 2007 and substantial indemnity costs thereafter, premised on offers to settle for $186,000 plus costs. Those settlements offers can now seen to be irrelevant as the respondents recovered less. However, the respondents’ offer of April 11, 2007 to settle for $124,000 becomes relevant because they ultimately recovered more than that. The April 11, 2007 offer, though it does not meet the requirements of rule 49, remained open until February 13, 2008. We consider that there should be some enhancement in the respondents’ costs entitlement for that period.

[3] We also take into consideration the appellants’ offer to settle the action. On March 7, 2008, before the commencement of trial, the appellants made a rule 49 offer to settle the action for $80,000 in damages to the respondent, Piresferreira. They later offered $200,000 in damages and $100,000 for costs. This offer was made on April 1, 2008 at a settlement conference on the eighth day of a twelve-day trial. The appellants put that offer in writing on May 21, 2008, after completion of the trial.

[4] We consider that the appellants’ failure to contest the “negligence” issue at trial an important factor in fixing the costs of trial. The major reduction in the trial judge’s damages award was as a result of the appellants’ success on that issue on appeal. The appellants’ failure to raise that issue at trial may well have affected the respondents’ expectations and their decision to not accept the appellants’ mid-trial offer to settle. The appellants’ required the exercise of this court’s discretion to raise that issue on appeal.

[5] In all these circumstances, we would award the respondents their costs of the trial, fixed in the amount of $140,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”