COURT OF APPEAL FOR ONTARIO

CITATION: May v. Smith, 2014 ONCA 524

DATE: 20140704

DOCKET: C52828

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

Ella May by her litigation guardian Shirley Fourney

Plaintiff (Respondent)

and

Robert John Smith and Mary J. Smith

Defendants (Appellants)

Alden Christian, for the appellants

Gary Boyd, for the respondent

Heard and released orally: June 27, 2014

On appeal from the order of Justice Terrance P. O’Connor of the Superior Court of Justice, dated September 21, 2010.

ENDORSEMENT

[1] The defendants appeal of the judgment of O’Connor J. The plaintiff cross-appeals on the issues of interest and costs.

[2] The defendants make four submissions:

(1) The trial judge erred in failing to consider the 1983 agreement;

(2) The trial judge failed to consider the cancellation clause in the 1994 note;

(3) The trial judge failed to consider the appropriate interest rate; and

(4) The trial judge’s costs award did not reflect the principle of proportionality

[3] We did not call on the respondent on the appellants’ first two submissions. On the first submission, the 1994 note is clear on its face and reflected the evidence given by Robert James Smith, which the trial judge accepted. He did not err in doing so.

[4] On the second issue, the trial judge was correct not to give effect to the cancellation clause in the note, as the appellants had stopped paying on the note many years before Mrs. Smith died.

[5] On interest, we do not accept the appellants’ position that no interest is payable, or the respondent’s position that the trial judge should not have reduced the rates applicable under the note. The trial judge attempted to reach a fair and reasonable resolution of the amount of interest owing. We decline to interfere with the exercise of his discretion.

[6] Similarly on costs we decline to interfere with the amount awarded. Strictly speaking, the award does not take account of the respondent’s rule 49 offer. But it is nonetheless a generous award, and in the circumstances, reflects the principle of proportionality.

[7] Accordingly, both the appeal and the cross-appeal are dismissed with costs to the respondent in the agreed on amount of $15,000 inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“P. Lauwers”

“C.W. Hourigan J.A.”