Court of Appeal for Ontario

CITATION: Whiteside v. Celestica International Inc., 2014 ONCA 499

DATE: 20140626

DOCKET: C56676

Blair, Watt and Lauwers JJ.A.

BETWEEN

Jim Whiteside, Jason Wright, Steve Wilson and 3077187 Canada Ltd.

Plaintiffs (Appellants)

and

Celestica International Inc.

Defendants (Respondents)

Peter N. Mantas, for the appellants

R. Seumas M. Woods and Dustin Kenall, for the respondent

Heard: January 20, 2014

COSTS ENDORSEMENT

[1] On May 23, 2014, the Court released it reasons in this matter, allowing the appeal and directing a new trial on certain issues. On the issue of costs, the Court provided that, if the parties were unable to agree, they could make brief written submissions. They could not agree and have done so. This is our decision as to costs, having reviewed their brief written submissions.

[2] The appellants argue that, although a new trial was ordered on certain issues, they were nonetheless substantially successful on the appeal. They claim a total of $52,994.52 on a partial indemnity basis, inclusive of taxes and disbursements. The respondent argues that the appellants were not substantially successful, that success was divided, and that the appellants should be awarded an all-inclusive sum of $25,000 or about one-half of their claim. The respondent submits, in any event, that the amount claimed by the appellants is excessive having regard to the nature of the appeal.

[3] We agree with the appellants that they were substantially successful on the appeal. The Court ruled in their favour (a) in concluding that the total NEC Project EBIAT was to be included in the calculation of the Total EBIAT, and therefore credited towards the Earn-Out Payments, and (b) in setting aside the trial judge’s finding that even if the total NEC Project EBIAT were included in the calculation of the Total EBIAT, the thresholds necessary to trigger the Earn-Out Payments had not been met. The calculations flowing from those conclusions were referred to a new trial, but the two issues on which the appellants succeeded were what was necessary to cut the Gordian knot for the purposes of those calculations.

[4] We are satisfied that some reduction is in order to recognize the divided success, but not to the extent sought by the respondent.

[5] Nor are we persuaded that the amount claimed by the appellants is unreasonable. This was a complex commercial case involving considerable preparation. The amounts in issue are significant for the appellants.

[6] We order that the appellants are entitled to their costs of the appeal, fixed in the amount of $45,000 all-inclusive. It is an amount that is fair and reasonable for the respondent to have expected to pay: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R (3d) 291.

[7] Both parties agree that the costs of the first trial should be left to the discretion of the judge hearing the new trial. Accordingly, the trial judge’s decision on costs dated February 25, 2014 is set aside and those costs are remitted to the judge hearing the new trial for determination.

“R.A. Blair J.A.”

“David Watt J.A.”

“P. Lauwers J.A.