Court File and Parties

Citation: Langford v. Trigiani Construction Limited, 2012 ONSC 724 Divisional Court File No.: DC-10-218 Date: 2012-02-07 Superior Court of Justice - Ontario Divisional Court

Re: Timothy Langford and Suzanne Langford, Plaintiffs (Appellants) And: Trigiani Construction Limited, Defendant (Respondent)

Before: Jennings, McCartney and Swinton JJ.

Counsel: William P. Dermody and Angela Papalia, for the Plaintiffs (Appellants) Michael G. Emery, for the Defendant (Respondent)

Endorsement As To Costs

[1] We have had the advantage of very full written submissions on costs.

[2] The Plaintiffs, Appellants were successful on the appeal in significantly increasing their recovery from that awarded by the trial judge.

[3] The Defendant made a pre-litigation offer which was in an amount greater than what we awarded. It was only open for acceptance for 5 days. The Defendant asks for costs of the appeal.

[4] No Rule 49 offer was ever made by the Defendant. It went to trial, and to appeal, with no offer on the table.

[5] The Plaintiffs made 3 offers under Rule 49, albeit each was for a greater amount than they ultimately were awarded. They seek costs of $16,950.

[6] In our opinion, given the recovery made and the necessity of the appeal to obtain it, the Plaintiffs should receive something towards their costs.

[7] We feel that an award of $15,000 inclusive, payable by the Defendant forthwith, would be just.

Jennings J.

McCartney J.

Swinton J.

Date: February 7, 2012