Court of Appeal for Ontario

Date: 2019-09-20 Docket: C65540

Judges: Pepall, Trotter and Harvison Young JJ.A.

Between

Michael Dawe Plaintiff (Respondent)

and

The Equitable Life Insurance Company of Canada Defendant (Appellant)

Counsel

For the Appellant: Michael A. Hines and Amanda J. Hunter

For the Respondent: Andrew F. Camman, Susan A. Toth and Sarah Bauer

Heard: February 4, 2019

On Appeal

On appeal from the judgment of Justice Donald J. Gordon of the Superior Court of Justice dated May 23, 2018, with reasons reported at 2018 ONSC 3130.

Costs Endorsement

[1] This court allowed the appeal of Equitable Life in part, reducing the period of reasonable notice. Apart from adjusting Mr. Dawe's damages for bonus entitlement to accord with the new notice period, it dismissed Equitable Life's other arguments on this issue: Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512. The court invited submissions on costs, establishing certain deadlines for filing. The parties requested and received an extension of time to file these submissions as they attempted to settle outstanding matters between them. They were unable to settle some or all of their issues.

[2] The parties sought clarification of this court's judgment in terms of damages for Mr. Dawe's bonus entitlement. The parties were permitted to exchange and file written submissions on the bonus entitlement issue and costs.

[3] On the issue of bonus entitlement, Equitable Life submits that Mr. Dawe is not entitled to damages for the bonus that would otherwise have been paid to him in early 2018 for the previous year because, as this court determined, his notice period ended in 2017. According to Equitable Life, Mr. Dawe is not entitled to any damages for bonus entitlements earned in 2017.

[4] Mr. Dawe submits that the motion judge held that he was entitled to be paid damages for bonus payments "in full during the notice period." Mr. Dawe argues that Equitable Life did not appeal this aspect of the motion judge's decision and that Equitable is attempting to re-litigate issues already decided.

[5] We agree with Mr. Dawe. The motion judge determined that Mr. Dawe was entitled to damages for "full" bonus payments to the end of the notice period. The motion judge intended that Mr. Dawe receive damages for earned bonus payments until the end of the notice period (in 2017) on a pro rata basis and this court determined the bonus issue on this basis. We decline to entertain this new issue raised by Equitable Life at this stage.

[6] The parties have agreed on the costs to be paid to Mr. Dawe for the motion. It is not necessary for this court to make any order on this issue.

[7] In terms of costs of the appeal, Equitable Life claims success and requests $37,612.81, plus disbursements and taxes. Mr. Dawe submits that, of the two issues on appeal, "the far greater damages value rests in the bonus entitlement, not in the notice period." He also submits that he has incurred additional costs from Equitable Life's attempt to raise new arguments in the guise of seeking "clarification" of the court's judgment. He seeks $20,000 for the appeal, and a further $5,000 relating to the new arguments raised by Equitable Life at this stage.

[8] We agree with Mr. Dawe. He is entitled to costs in the amount of $25,000, inclusive of taxes and disbursements.

S.E. Pepall J.A. Gary Trotter J.A. A. Harvison Young J.A.