Court File and Parties

Citation: Muskoka Fuels v. Hassan Steel Fabricators Limited, 2011 ONCA 495 Date: 2011-07-06 Docket: C51518 Court of Appeal for Ontario Before: Rosenberg, Feldman and Juriansz JJ.A.

Between:

Muskoka Fuels Plaintiff (Respondent)

and

Hassan Steel Fabricators Limited Defendant (Appellant)

Counsel: Shannon Puddister and Louise Moher, for the appellant David Zuber and Karim Hirani, for the respondent

Heard: February 1, 2011

On appeal from the judgment of Justice Susan E. Healey of the Superior Court of Justice dated December 11, 2009, with reasons for judgment reported at 2009 CanLII 78887 (ON S.C.) and reasons for costs reported at 2010 ONSC 1221.

Costs Endorsement

[1] We dismissed this appeal and allowed the respondent’s cross-appeal of the trial judge’s costs decision on May 6, 2011, and asked for written submissions on costs of the trial and the appeal.

[2] The parties have agreed on costs of the appeal and cross-appeal in the amount of $10,000 inclusive of disbursements and applicable taxes.

[3] The respondent has submitted a Bill of Costs seeking a total of $76,244.00 in trial fees. Several factors are particularly relevant in determining the costs of the trial.

[4] Before trial, the respondent made a Rule 49 offer to settle dated September 4, 2008. However, departure from the normal operation of the rule is warranted because the statement of claim was amended in April 2009 to add a claim for breach of s. 15 of the Sale of Goods Act, R.S.O. 1990, c. S-1. That claim was the basis on which this court dismissed the appeal. We would not award the respondent substantial indemnity costs before the date of the amendment.

[5] We also consider that the preparation time of the action, and to some extent the trial time, were unduly lengthened by causes of action that ultimately played no role in the appellant’s liability.

[6] As well, the amount the respondent seeks for costs is disproportionate to the amount recovered at trial: $66,380.39 plus prejudgment interest. For example, the amount included in the Bill of Costs for time travelling and $4,100 for the preparation of the Bill of Costs is disproportionate to the size and recovery of the claim.

[7] Considering these factors, we fix the respondent’s costs of the trial in the amount of $35,000 plus disbursements in the agreed upon amount of $24,607.01, plus applicable taxes.

“M. Rosenberg J.A.”

“K. Feldman J.A.”

“R.G. Juriansz J.A.”