Case Name:

Drouillard v. Cogeco Cable Inc.

 

 

Between

Kevin Drouillard, Respondent (Appellant by

Cross-Appeal), and

Cogeco Cable Inc., Appellant (Respondent by

Cross-Appeal)

 

[2007] O.J. No. 2531

 

2007 ONCA 485

 

49 C.C.L.T. (3d) 42

 

158 A.C.W.S. (3d) 722

 

2007 CarswellOnt 4106

 

Docket: C44042

 

 

 Ontario Court of Appeal

 Toronto, Ontario

 

D.R. O'Connor A.C.J.O., K.N. Feldman and

P.S. Rouleau JJ.A.

 

Heard: January 26, 2007.

 Judgment: June 28, 2007.

 

(13 paras.)

 

Civil procedure -- Costs -- Assessment or fixing of costs -- Considerations -- Offers to settle -- Amount of offer v. award -- Costs awarded by trial judge were adjusted to reflect result of appeal -- As a result of the appeal, respondent's judgment was lower than the settlement offer he made -- Trial costs were reduced to $110,000 -- Due to mixed success on appeal, court declined to award appeal costs.

 

Costs endorsement following the parties written submissions. The appellant, Cogeco, submitted that it was largely successful on appeal as the judgment was reduced by almost half and it was totally successful on the cross-appeal. Cogeco therefore argued that it ought to be awarded costs of the appeal fixed at $20,000, plus costs of filing a supplementary factum and costs respecting the respondent's motions. With respect to trial costs, Cogeco submitted that in light of its partial success on appeal, the trial judge's costs award of $146,108 should be reduced.

HELD: Costs were to be adjusted to reflect that, as a result of the appeal, the respondent's judgment was lower than the settlement offer he made. The basis upon which trial costs were to be calculated was changed to partial indemnity. Trial costs were fixed at $110,000, inclusive of GST and disbursements. With respect to the costs of the appeal, the court viewed the result as one of mixed success. The amounts claimed by the parties were to be offset and no award of costs for the appeal and motions was granted.

 

Appeal From:

On appeal from the judgment of Justice Richard C. Gates of the Superior Court of Justice dated July 26, 2005.

 

Counsel:

Adrian Miedema for the appellant.

Raymond Colautti and Anita Landry for the respondent.

 

 

 

 

ENDORSEMENT RE COSTS

The following judgment was delivered by

1     THE COURT:-- Reasons for judgment were released on May 1, 2007. The parties were asked to make written submissions on costs.

Cogeco's Submissions

2     Cogeco submits that it was largely successful on appeal as the judgment was reduced by almost half and it was totally successful on the cross-appeal. Cogeco therefore argues that it ought to be awarded costs of the appeal fixed at $20,000. To this figure should be added the following:

 

 

1. Costs of filing a supplementary

$3,392.70

 

 

factum pursuant to the endorsement

 

 

 

of Weiler J.A.

 

 

 

 

2. Costs of the respondent's motion

$1,500.00

 

 

for leave to amend the notice of

 

 

 

cross-appeal

 

 

 

 

3. Costs of the respondent's motion

$5,000.00

 

 

to tender "fresh evidence" on appeal

---------

 

 

 

TOTAL

$9,892.70

 

 

 

---------

 

3     The total in costs requested for the appeal is $29,892.70.

4     With respect to the trial costs, Cogeco submits that in light of its partial success on appeal, the trial judge's cost award of $146,108.35 should be reduced to $80,000.

5     The trial judge had based his cost award principally on the following two factors:

 

1)            The judgment exceeded Drouillard's settlement offer. As a result, substantial indemnity costs were appropriate from the date of the offer until completion of the trial.

2)            Cogeco's pre-litigation conduct "was in fact the sole cause" of the litigation. Substantial indemnity costs were therefore warranted for the work done by Drouillard's lead counsel. The trial judge also expressed concern over the apparent destruction of a witness' notes.

6     The decision by this court on appeal reduced the award such that the judgment obtained by Drouillard no longer exceeds the settlement offer. This removes one of the bases for the award of substantial indemnity costs. Further, Cogeco submits that the trial judge erred in using pre-litigation conduct to justify the award of substantial indemnity costs for a portion of Drouillard's solicitor's fees. Additionally, this is not one of the rare and exceptional cases where a party's conduct in the litigation is reprehensible and justifies the unusual sanction of substantial indemnity costs: see Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.).

7     Finally, Cogeco submits that an award of $146,108.35 in costs is out of proportion to the $107,544.77 recovered which is far below the $637,122.00 Drouillard had claimed at trial for future wage losses.

Drouillard's Submissions

8     Drouilllard maintains that, on appeal, he was successful on the critical issue of liability. In fact, he submits that he was successful on ten out of eleven grounds of appeal advanced. As a result, Drouillard submits that he ought to be awarded $17,764.36 in costs for the appeal. This represents approximately 60% of his partial indemnity bill of costs.

9     Drouillard argues that the costs being claimed by Cogeco for the filing of a supplementary factum and the motion for leave to tender "fresh evidence" are excessive and ought to be reduced to $1,500 and $2,000 respectively. With respect to the motion for leave to amend the notice of cross-appeal, Drouillard submits that he was successful on this motion and, rather than paying costs, should be awarded costs in the amount of $1,500.

10     With respect to the trial costs, Drouillard submits that the trial judge's award was fair and reasonable. It properly took into account Cogeco's bad conduct both before and during the trial.

Award of Costs

11     We agree that the trial costs should be adjusted to reflect that, as a result of the appeal, Drouillard's judgment is lower than the settlement offer he made. Further, we do not agree that the pre-litigation conduct, which the trial judge said was "in fact the sole cause" of the litigation, is a sufficient basis to award substantial indemnity costs. Nor do we believe that Cogeco's conduct during trial warranted such an award. As a result, we would change the basis on which trial costs were calculated to partial indemnity and fix the costs at $110,000 inclusive of GST and disbursements.

12     With respect to the costs of the appeal, we view the result as one of mixed success. Although Cogeco succeeded on only one of the grounds of appeal advanced, it was a very significant one. Cogeco was also successful in resisting the cross-appeal. Drouillard, for his part, succeeded on liability and has maintained a very substantial award. We would normally award Drouillard some costs but, in light of Cogeco's entitlement to the costs of filing a supplementary factum and the costs of Drouillard's motion for leave to amend the cross-appeal and to tender fresh evidence, we will offset these amounts and make no award of costs for the appeal and motions.

13     In conclusion the respondent is awarded $110,000 in trial costs inclusive of GST and disbursements. There will be no costs for the appeal and motions brought in the Court of Appeal.

D.R. O'CONNOR A.C.J.O.

 K.N. FELDMAN J.A.

 P.S. ROULEAU J.A.

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