COURT OF APPEAL FOR ONTARIO

CITATION: Martin v. Sansome, 2014 ONCA 192

DATE: 20140312

DOCKET: C55798

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Delmer Bearinger Martin

Applicant (Appellant in Appeal)

and

Linda Lorraine Sansome

Respondent (Respondent in Appeal)

Aaron Franks and Michael Zalev, for the applicant (appellant)

Pamela L. Hebner and Patrick Jocsak, for the respondent

Heard: October 8, 2013

On appeal from the judgment of Justice G.A. Campbell of the Superior Court of Justice, dated June 26, 2012.

COSTS ENDORSEMENT

[1] We have received and reviewed the parties’ submissions on costs.

[2] The appellant argues that he was the successful party on this appeal, and seeks costs on a partial indemnity scale in the amount of $25,000, inclusive of disbursements in the amount of $2,021 and HST. The respondent submits that she was successful on the appeal, and seeks costs on a partial indemnity scale in the amount of $40,931.17, inclusive of disbursements in the amount of $4,984 and HST. It appears that the respondent, and not the appellant, paid for the transcripts required for the appeal.

[3] In our view, the respondent was largely successful on the appeal. While the amount that the appellant is required to pay the respondent was reduced on appeal, the appellant did not obtain the principal relief he sought, namely a new trial. As the respondent submits, such a result would have been disastrous for the respondent. And the court did not interfere with the trial judge’s pivotal order setting aside the domestic contract between the parties.

[4] We accordingly award the respondent costs of the appeal, fixed in the amount of $25,000, inclusive of disbursements and HST.

[5] The appellant also submits that the costs awarded at trial – $73,000 on a substantial indemnity scale – should be reduced to $43,800 on a partial indemnity scale. The appellant suggests that the only reason that the trial judge fixed costs on a substantial indemnity scale was because the amount that he awarded to the respondent at trial exceeded her pre-trial settlement offer. The appellant notes that the amount to which the respondent is entitled following appeal is less than the amount of her pre-trial settlement offer.

[6] It is not clear to us that the only reason that the trial judge ordered costs on a substantial indemnity scale was because of the settlement offer. The issue of the costs of trial is accordingly remitted to the trial judge in case he wishes to reconsider his costs award in the light of this court’s decision.

“Alexandra Hoy A.C.J.O.”

“John I. Laskin J.A.”

“M. Tulloch J.A.”