Court File and Parties

Court of Appeal for Ontario Date: 20240103 Docket: C70373

Benotto, Trotter and Zarnett JJ.A.

Between

The Rosseau Group Inc. Plaintiff (Respondent)

and

2528061 Ontario Inc. Defendant (Appellant)

Counsel: J. Thomas Curry and Aoife Quinn, for the appellant Stephen Schwartz and Emily Quail, for the respondent

Heard: March 20, 2023

On appeal from the judgment of Justice Kendra D. Coats of the Superior Court of Justice dated January 24, 2022, with reasons reported at 2022 ONSC 486.

Costs Endorsement

[1] By reasons dated December 8, 2023, we dismissed the appeal against the trial judge’s liability finding but set aside her damages award and directed a new hearing on damages. We invited the parties to make submissions on costs: 2023 ONCA 814, at paras. 91-92 and 95.

[2] The parties agree, given the divided success on the appeal, that each should bear their own costs of the appeal. They disagree about whether the trial judge’s disposition of costs of the action should remain in place.

[3] The trial judge awarded the respondent costs of the action in the sum of $251,706.10. The respondent submits that order should not be changed, or alternatively should be reduced by one-third, with the costs of the new damages hearing left to the discretion of the judge presiding over it. The appellant submits that the costs order of the trial judge should be set aside entirely and the costs of the entire action left to the discretion of the judge conducting the new damages hearing.

[4] We agree with the respondent’s alterative submission. The respondent has succeeded on liability [^1] and in establishing an entitlement to damages. What remains is the quantification of damages according to the correct measure. To the extent the trial judge’s costs award needs adjustment, because it awarded costs for part of the action on a substantial indemnity scale due to an offer to settle the respondent had made [^2] as well as due to the result of the appeal, we believe that a one-third reduction reflects those considerations.

[5] Accordingly, (i) there shall be no costs of the appeal; (ii) the trial judge’s costs order is varied to provide that the sum of $167,804.07, inclusive of disbursements and applicable taxes, is payable by the appellant to the respondent; and, (iii) the costs of the further hearing on damages shall be in the discretion of the judge conducting that hearing.

“M.L. Benotto J.A.’ “Gary Trotter J.A.” “B. Zarnett J.A.”

Footnotes

[^1]: The respondent contends that the majority of the time at trial was spent on this issue. The appellant’s submissions did not dispute this contention.

[^2]: It is now not known whether the award to the respondent exceeds its offer.