



COURT OF APPEAL FOR ONTARIO

CITATION:
Elbakhiet v. Palmer, 2014 ONCA 544

DATE: 20140711

DOCKET: C56143

Rosenberg, Cronk and Tulloch JJ.A.

BETWEEN

Amira Khalid Mo Elbakhiet, Abdelrhman Elkh Ahmed
    and Maha Ahmed, a minor, and Niem Ahmed, a minor, by their Litigation Guardian,
    Abdelrhman Alkh Ahmed

Plaintiffs (Respondents)

and

Derek A. Palmer, Rockie Palmer, Metcalfe Realty
    Company Limited and Kingsway General Insurance Company

Defendants (Appellants)

Chris G. Paliare and Andrew K. Lokan, for the
    appellants, Derek A. Palmer and Rockie Palmer

Allan Rouben, for the respondents

Heard: January 20, 2014

On appeal from the judgment of Justice Giovanna Toscano
    Roccamo of the Superior Court of Justice, dated June 21, 2012, with reasons
    reported at 2012 ONSC 3666.

Rosenberg J.A.:

[1]

The appellants, defendants in a motor vehicle accident action, appeal
    from the trial judges costs award. Prior to the commencement of trial, the
    appellants made two offers to settle. While the respondents obtained judgment
    in their favour following a jury trial, the appellants submit that the trial
    judge erred in failing to correctly apply rules 49.10(2) and 49.13, and Rule 57
    of the
Rules of Civil Procedure,
R.R.O. 1990, Reg. 194. This appeal
    raises the following issues:

(1)

Was the appellants second offer to settle made at least seven days
    before the commencement of the hearing as required by rule 49.10(2)?

(2)

Did the appellants prove that the respondents obtained a judgment as
    favourable as or less favourable than the terms of the second offer to settle?

(3)

Even if the second offer to settle did not meet the requirements of rule
    49.10, did the trial judge err in awarding the respondents their costs on a
    partial indemnity basis in the amount of $578,742.28 despite the respondents
    modest success at trial and the offers to settle made by the appellants?

[2]

For the following reasons, I would allow the appeal and set aside the
    costs order of the trial judge.

THE FACTS

The Jurys Damages Award

[3]

This appeal arises out of a jury trial for a motor vehicle accident that
    occurred on July 7, 2007. There was no dispute that the appellant Derek
    Palmers motor vehicle rear-ended a vehicle being driven by the respondent Abdelrhman
    Elkh Ahmed. The issue at trial was the scope of the injuries suffered by the
    respondent Amira Khalid Mo Elbakhiet, who was a back-seat passenger. Despite
    the fact that the collision occurred at low speed, Ms. Elbakhiet claimed that
    she suffered serious post-traumatic headaches, whiplash-related symptoms,
    depression and a traumatic brain injury leading to post-concussive syndrome.
    The respondents claimed damages of almost $2 million, including substantial
    amounts for loss of future earnings and cost of future care. The jury awarded
    damages of only $144,013.07  (Judgment) allocated as follows:

Non-pecuniary damages                     $25,000.00

Loss of past earnings                                 $0.00

Loss of future earnings                       $87,852.75

Cost of future care                                $6,160.32

Family Law Act
claims
$25,000.00

Total                                               
    $144,013.07

[4]

The jurys answers to the questions on the verdict sheet show that it
    had difficulty with Ms. Elbakhiets credibility.

The Offers to Settle

[5]

The respondents made one offer to settle on February 9, 2012 for
    $600,000, plus costs as agreed or assessed on a partial indemnity basis to the
    date of the offer, and on a substantial indemnity basis thereafter.

[6]

The appellants made two offers. The first, dated November 15, 2011, was
    for $120,000, plus costs as agreed or assessed to the date of the offer. The
    second offer was dated February 9, 2012 and served on February 10, 2012. This
    offer was for $145,000, plus prejudgment interest in accordance with the
Courts
    of Justice Act
, R.S.O. 1990, c. C. 43,
and costs as agreed or assessed to the date of the offer.

THE APPLICABLE RULES

[7]

As this case involves offers to settle, portions of Rule 49 are involved
    as follows:

49.03  An
    offer to settle may be made at any time, but where the offer to settle is made
    less than seven days before the hearing commences, the costs consequences
    referred to in rule 49.10 do not apply.



49.10
(2)  Where
    an offer to settle,

(a) is made by a defendant at least seven days before the
    commencement of the hearing;

(b) is not withdrawn and does not expire before the
    commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as or less
    favourable than the terms of the offer to settle, the plaintiff is entitled to
    partial indemnity costs to the date the offer was served and the defendant is
    entitled to partial indemnity costs from that date, unless the court orders
    otherwise.

(3)  The
    burden of proving that the judgment is as favourable as the terms of the offer
    to settle, or more or less favourable, as the case may be, is on the party who
    claims the benefit of subrule (1) or (2).



49.13  Despite
rules 49.03, 49.10 and 49.11, the
    court, in exercising its discretion with respect to costs, may take into account
    any offer to settle made in writing, the date the offer was made and the terms
    of the offer.

[8]

This case also concerns the general principles a court considers when
    exercising its discretion to award costs, set out in rule 57.01(1):

57.01  (1)  In
    exercising its discretion under section 131 of the
Courts of Justice Act
to award costs, the court may consider, in addition to the result in the
    proceeding and
any offer to settle
or to contribute made in writing,

(0.a) the principle of indemnity, including, where
    applicable, the experience of the lawyer for the party entitled to the costs as
    well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could
    reasonably expect to pay in relation to the step in the proceeding for which
    costs are being fixed;

(a)
the amount claimed and the amount recovered in the
    proceeding
;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to
    lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or
    unnecessary, or

(ii) taken through negligence,
    mistake or excessive caution;

(g) a party's denial of or refusal to admit anything that
    should have been admitted;

(h) whether it is appropriate to award any costs or more
    than one set of costs where a party,

(i) commenced separate proceedings
    for claims that should have been made in one proceeding, or

(ii) in defending a proceeding
    separated unnecessarily from another party in the same interest or defended by
    a different lawyer; and

(i) any other matter relevant to the question of costs. [Emphasis
    added.]

THE REASONS OF THE TRIAL JUDGE

[9]

The trial judge first dealt with whether the offer served by the
    respondents on February 10 was made at least seven days before the
    commencement of the hearing, within the meaning of rule 49.10(2)(a). Because
    of rule 3.01(1)(b), holidays including weekends and statutory holidays are not
    to be counted in calculating the seven days. It was conceded by the parties
    that the seven day requirement was met only if the hearing commenced on
    February 22.

[10]

The
    trial judge held that in a jury trial, the time should only begin to run with
    the calling of evidence.  The trial judge referred to several cases that have
    held to this effect. Jury selection, opening statements and rulings on
    objections by the parties to each others opening statements were dealt with on
    February 21, 2012. The calling of evidence did not begin until February 22. She
    also noted that the respondents had 14 calendar days to consider the offer.
    Accordingly, she found that the February 10 offer was made within seven days
    before commencement of the hearing, within the meaning of rule 49.10(2)(a).

[11]

The
    trial judge then turned to the question whether the respondents obtained a
    judgment as favourable as or less favourable than the terms of the second offer
    to settle. It was the position of the appellants that the phrase plus
    prejudgment interest in accordance with the
Courts of Justice Act
 in
    the offer was intended to mean prejudgment interest of 5% on the entire
    $145,000. If that were the case, the offer would exceed the jurys verdict.
    Under the
Courts of Justice Act,
s. 128, only non-pecuniary damages
    attract an interest rate of 5%. Other elements of an award, such as past income
    loss and damages at that time would have had a lower interest rate. The trial
    judge was not satisfied there was a uniform practice that 5% should be applied
    to the entire offer. The trial judge noted that the terms of a Rule 49 offer
    must be fixed, certain and capable of clear calculation in order to attract the
    cost consequences. The trial judge appeared to find that the offer was
    uncertain and therefore the respondents should not be deprived of partial
    indemnity costs, subject to considerations under Rule 57.

[12]

The
    trial judge found, at para. 35, that there were no circumstances pertinent to
    the factors in Rule 57 that would justify departure from application of the
    costs consequences of Rule 49. She rejected the position that even if the Judgment
    was only slightly better than the offer, the normal costs consequences should
    not follow. She stated, at para. 36, that only where the party meets its
    burden under Rule 49.10(2) and (3), subject to the courts jurisdiction to
    order otherwise should there be costs consequences from not accepting the
    offer. The trial judge said, at para. 37:

[N]either the Plaintiffs nor the Defendants clearly point to
    any factor in Rule 57.01, other than the result in the proceedings and the
    Offers to Settle, to guide me in the exercise of my discretion to award costs
    in this case.

[13]

The
    trial judge dealt with what she identified as the relevant matters under Rule
    57 as follows:

·

The Amount Claimed and Received
: while the jury
    preferred the appellants theory of the case, based on reputable and ample
    medical opinion, the case was potentially worth considerably more than the jury
    awarded. In light of the body of medical evidence, the trial judge would not
    exercise [her] discretion to penalize the Plaintiffs in costs for pursuing the
    case with the degree of care and attention it clearly demanded.

·

Complexity of Proceeding, and Importance of the Issues
:
the parties agreed that the case
    involved complex issues of causation and significantly important issues.

·

Conduct Tending to Impact on Duration of Proceedings
:
while the respondents called seven witnesses
    not on their witness list and filed three expert reports after a deadline
    ordered by the trial management Master, there should be no costs consequences.
    There was no suggestion that the witnesses were unnecessary or that the
    appellants were prejudiced by the expert reports.

·

Improper, Vexatious or Unnecessary Steps
:
there were no improper, vexatious or
    unnecessary steps.

·

Failure or Refusal to Admit what should have been
    Admitted
:
neither party
    could be faulted for denial of or refusal to admit anything that should have
    been admitted.

·

Other Relevant Matters
:
the trial judge took into account that if the appellants were given costs this
    would deprive Amira Elbakhiet of funding for ongoing psychotherapy and would
    have some bearing on her ability to complete her schooling.

Accordingly, the trial judge ordered the appellants to
    pay the respondents partial indemnity costs throughout in the amount of
    $578,742.28, inclusive of disbursements and taxes.

THE ISSUES

[14]

The
    appellants submit that the trial judge erred in finding that their offer to
    settle did not exceed the Judgment. They submit that there is a general
    understanding that an offer in the terms made by the appellants would bear
    interest at the most favourable rate of 5% for the entire amount. If there was
    any doubt, the respondents should have made inquiries as to the terms of the
    offer. Alternatively, the trial judge should have allocated most of the offer
    to general damages in which case the offer would have exceeded the Judgment.
    They rely upon the reasons of the majority in
Rooney (Litigation Guardian
    of) v. Graham
(2001), 53 O.R. (3d) 685 (C.A.) and note that while the
    trial judge referred to
Rooney
, she only referred to the concurring
    minority reasons of Carthy J.A.  Alternatively, the trial judge erred in
    failing to take into account that the Judgment was very close to the
    appellants offer. This near miss should have been considered as required by rules
    49.13 and 57.01. Finally, the trial judge also failed to apply the
    proportionality principle, given the respondents very limited success as
    compared to the amounts sought.

[15]

The
    respondents support the trial judges order, except that they argue that the second
    offer to settle was not made at least seven days before the commencement of the
    hearing. They argue that the hearing began on February 21, 2012. They further submit
    that the offer was not certain and the appellants were unable to discharge the
    onus of proving that the offer was more favourable than the Judgment. They deny
    that there is any industry practice in relation to pre-judgment interest as
    claimed by the appellants. There is also no near-miss principle that applies
    to attract the costs consequences of Rule 49. The trial judge had the authority
    to reduce the respondents costs but it was a matter of discretion for the
    trial judge and she did not act unreasonably. The trial judge considered all of
    the relevant factors under Rule 57. This was not a case where the parties
    litigated a matter of negligible value out of all proportion to the amounts at
    stake.

ANALYSIS

At least seven days before commencement of the hearing

[16]

Determining
    when a trial has commenced is a complex matter that depends upon the purpose
    involved in the inquiry. In general, cases in the trial courts of this province
    have supported the view that a jury trial commences for the purpose of Rule 49
    when evidence has been heard. Some of the relevant cases are summarized by
    Sutherland J. in
Capela v. Rush
(2002), 59 O.R. (3d) 299 (S.C.J.). One
    contrary decision in
Bontje v. Campbell, Roy & Brown Insurance Brokers
    Inc.
(1994), 21 O.R. (3d) 545 (Gen. Div.), is discussed at some length in
Capela
.
    Sutherland J. in
Capela
pointed out that the judge in
Bonje
did not refer to the many other cases that held the trial only commenced with
    the hearing of evidence.

[17]

The
    respondents point out that Rule 49 uses the term hearing rather than trial.
    I agree with the appellants that the use of hearing merely reflects the fact
    that Rule 49 can apply to other types of proceedings, not just trials.

[18]

In
    different circumstances the terms trial or hearing can have a broader or
    narrower meaning depending upon the purpose for which the term is used. For
    example, in
Sauve v. Pokorny
(1997), 35 O.R. (3d) 752 (C.A.), the
    court had to determine the meaning of the phrase presiding at a trial in s.
    108(7) of the
Courts of Justice Act
. That section provides as follows:
    
[t]he judge presiding at a trial
    may discharge a juror on the ground of illness, hardship, partiality or other
    sufficient cause. The question in
Sauve
was whether that section
    applied after the jury was sworn and the trial judge and counsel had given
    their opening addresses. A majority of this court held that the judge was
    presiding at the trial for the purpose of that section and could proceed with
    five jurors. The court relied upon a similar decision in the criminal context
    in
R. v. Varcoe
(1996), 104 C.C.C. (3d) 449 (Ont. C.A.).

[19]

The
    wording of Rule 49 and s. 108(7) are different and engage different interests.  In
    the case of discharge of jurors, as in
Sauve,
the purpose of the power
    is to avoid abortive trials. The purpose of Rule 49, in contrast, is to
    encourage settlement.

[20]

The
    weight of judicial authority, reviewed in
Capela
, suggests that a
    trial commences on the first day of evidence. This is also the view expressed
    in the leading text on costs, M.M. Orkin
The Law of Costs
, looseleaf,
    2d ed. (Aurora: Canada Law Books Inc., 2011), at para. 214.5. This consensus
    has provided certainty to parties making Rule 49 offers, and such certainty
    furthers the purposes of Rule 49. A civil trial therefore commences within the
    meaning of Rule 49 when evidence has been heard.

[21]

The
    appellants second offer to settle, served February 10, 2012, was therefore
    made at least seven days before the commencement of the hearing.

Did the Offer exceed the Judgment?

[22]

There
    are two issues involved in the question whether the second offer exceeded the
    Judgment. First, whether the offer was sufficiently certain or clear. Second,
    whether the appellants established that the offer did in fact exceed the
    Judgment.

[23]

The
    clarity issue arises because the offer does not specify to what part of the
    judgment the interest rate should apply. As noted by the trial judge, there are
    different rates of interest for different types of claims. In
Rooney
    (Litigation Guardian of) v. Graham
(2001), 53 O.R. (3d) 685 (C.A.), Carthy
    J.A. in his concurring minority reasons suggested that an offer of that type could
    suffer from lack of clarity and be invalid.  As he said, at para. 30:

The inclusion of a general claim for prejudgment interest in an
    offer presents no problems to the trial judge because it appears as the same
    amount in both the offer and the judgment. However, if presented as a general
    claim (in the present case it was fixed at 10 per cent of $225,000) it does
    provide problems to the offeree. Section 128 of the
Courts of Justice Act
provides for different rates for different types of claims and, thus, whenever
    the claim is a mixed one there would be no means whereby the offeree would know
    the current amount being offered.

[24]

Speaking
    for the majority, Laskin J.A. seemed more inclined to accept that this type of
    offer could be sufficiently clear. As he said, at para. 49:

What I have said about ongoing costs provisions in an offer
    applies to provisions for prejudgment interest. Carthy J.A. suggests that even
    some provisions for prejudgment interest may deprive a party of the cost
    consequences of rule 49.10. Rule 49 offers routinely contain provisions for
    prejudgment interest, either a specified amount or, as in this case, a
    specified rate. The calculation of prejudgment interest ordinarily is not
    difficult. I see no justification for interpreting Rule 49 to preclude
    provisions for ongoing prejudgment interest in offers to settle.

[25]

The
    problem in this case is that the provision for prejudgment interest in the
    offer neither provides for a specified amount nor a specified rate, because the
    rate varies depending upon the element of the claim.
Rooney
has,
    however, in my view resolved the approach to this uncertainty. As Laskin J.A.
    said, albeit in the context of a provision for solicitor and client costs, at
    para. 44:

This "uncertainty" should not invalidate Rule 49
    offers. I recognize that some courts have taken the opposite view. It seems to
    me, however, that in evaluating a Rule 49 offer any "uncertainty"
    that arises from a provision for costs should only be relevant in deciding
    whether the party relying on the offer has met its burden of proof under rule
    49.10(3). In other words, uncertainty or lack of clarity in an offer may
    prevent a party from showing that the judgment it obtained was "as
    favourable as the terms of the offer to settle, or more or less favourable, as
    the case may be". [Citations omitted.]

[26]

The
    respondents could know with sufficient precision whether to accept the offer.
    The uncertainty about the amount that would accrue for prejudgment interest in
    the circumstances of this case was narrow and did not prevent the respondents
    from fairly determining whether to accept the offer or proceed with the trial.

[27]

The
    real issue faced by the appellants is whether, in accordance with
Rooney
,
    they established that the offer exceeded the Judgment. As indicated, the
    appellants meet this argument on the basis that there is a general
    understanding that interest at 5% should apply to the entire offer. The trial
    judge was unaware of any such general understanding. The appellants have not
    offered any evidence of such a general understanding. The appellants refer to
Igbokwe
    v. Clarke
, [2004] O.J. No. 4667 (S.C.J.) where an offer used wording
    similar to the wording in the offer in the present case. But, that case, if
    anything, suggests that there was a lack of any such general understanding. In
Igbokwe,
in response to the offer, plaintiffs counsel wrote to defendants counsel and
    received a statement that prejudgment interest would be payable on the entire
    amount offered for net damages at the rate of 5% per year. There is nothing in
    the reasons of Jennings J. on costs suggesting that there was any general
    understanding to this effect; it was the terms of the correspondence that
    established the interest rate.

[28]

In
    this case, the Judgment and the offer were sufficiently close that only by
    making some arbitrary distribution of interest could the appellants establish
    that their offer exceeded the Judgment. They have not met the burden of proof
    imposed by rule 49.10(3):
Onisiforou v. Rose
(1998), 41 O.R. (3d) 737
    (C.A.), at p. 740.

Relevant Considerations for Setting the Costs

[29]

The
    appellants submit that even if their offer was not shown to have exceeded the
    Judgment, the trial judge erred in awarding the respondents costs on a partial
    indemnity basis without regard to the terms of the offer and the amount of the
    award.

[30]

It
    is only where a plaintiffs judgment is as favourable as or less favourable
    than the terms of the offer to settle that the defendant is entitled to costs
    in accordance with rule 49.10(2) unless the court orders otherwise. This
    court has narrowly construed this exception and the defendant will almost
    always be entitled to the benefit of rule 49.10 where the defendants offer complies
    with rule 49.10. A narrow construction of the exception underlies the high
    interest in encouraging settlement of cases: see
Niagara Structural Steel
    (St. Catherines) Ltd v. W.D. Laflamme Ltd.
(1987), 58 O.R. (3d) 773 (C.A.),
    at p. 777 and
Starkman v. Starkman
(1990), 75 O.R. (2d) 19 (C.A.), at p.
    27. As Morden J.A. said at p. 777 in
Niagara Structural Steel
:


[R]esort should only be had to the exception where, after
    giving proper weight to the policy of the general rule, and the importance of
    reasonable predictability and the even application of the rule, the interests
    of justice require a departure.

[31]

I
    agree with the respondents that there is no near miss policy.  A party that
    comes close to meeting the judgment is not thereby entitled to an award of
    costs as if they did provide a successful offer. This point was made clear in
PreMD
    Inc. v. Ogilvy Renault LLP
, 2013 ONCA 412 where the court applied the
    reasoning of
Niagara Structural Steel
and held, at para. 106, that a
    court should depart from rule 49.10 only in exceptional circumstances, where
    the interests of justice require a departure.

[32]

For
    the appellants to succeed they must show that the trial judge erred in
    principle in respect to other aspects of Rules 49 and 57. In my view, she did.
    First, the trial judge gave no consideration to rule 49.13 which provides that
    despite, among other things, rule 49.10, the court, in exercising its
    discretion with respect to costs, may take into account any offer to settle
    made in writing, the date the offer was made and the terms of the offer. The
    trial judge gave lengthy reasons in considering the factors set out in Rule 57.
    She dealt at length with rule 49.10. But she made no mention of rule 49.13.
    Given that the offer to settle was virtually the same as the Judgment, this was
    a case where the court had to consider the impact of rule 49.13.

[33]

As
    this court pointed out in
Lawson v. Viersen
, 2012 ONCA 25, at para.
    46, rule 49.13 is not concerned with technical compliance with the requirements
    of rule 49.10. Rather, it calls on the judge to take a more holistic approach.
    The appellants complied with the spirit of Rule 49 even if they failed for
    technical reasons to provide an offer that exceeded the Judgment. As held in
Lawson
,
    at para. 49, this was the type of offer that ought to have been given
    considerable weight in arriving at a costs award.

[34]

Second,
    the trial judge erred in principle in her approach to rule 57.01(1)(a), which asks
    the trial court to consider the amount claimed and the amount recovered in the
    proceeding. The trial judge recognized that the jury preferred the defence
    theory of the case but she gave that factor no weight. Rather, she relied upon
    her own view of what the case was worth. As she put it in para. 38 of her
    reasons:

There is no doubt that the amount recovered by the Plaintiffs
    in the proceedings falls well short of the amount claimed. However, even in
    closing submissions before the jury, defence counsel acknowledged that if the
    jury did not accept that Amira Elbakhiet suffered minor injury in the accident,
    and believed that Amira Elbakhiet's complaints were caused by the accident, an
    appropriate range of general damages would fall between $70,000 and $90,000. In
    view of the verdict, it is apparent the jury preferred the Defendants' theory
    of the case.
From the Plaintiffs' perspective, however, based on reputable
    and ample medical opinion, this case was potentially worth considerably more
    than the jury ultimately awarded. In light of the body of medical opinion
    supporting the Plaintiffs' cause, I would not exercise my discretion to
    penalize the Plaintiffs in costs for pursuing the case with the degree of care
    and attention it clearly demanded.
[Emphasis added.]

[35]

The
    respondents sought damages of approximately $1.9 million, most of it in
    relation to loss of future earnings and cost of future care totalling
    approximately $1.6 million. The jury awards for those items were approximately
    $94,000. The amounts claimed and the amounts recovered were completely
    different. Rule 57.01 required those facts to be taken into consideration, not
    discounted because the trial judge believed the case was worth potentially
    more. It was not fair and reasonable to award the respondents costs of almost
    $580,000 for a claim the jury valued at just under $145,000.

[36]

In
    my view, because of these errors, the trial courts decision on costs cannot
    stand. The trial judge made an error in principle in failing to give any
    consideration to the offers to settle and her award is wholly disproportionate
    to the amounts recovered. The trial judges decision to simply award the costs
    sought by the respondents failed to give any consideration to what amount would
    be fair and reasonable.

Proper Costs Award

[37]

The
    appellants submit that the costs award should be set aside and an order made
    awarding the appellants their costs in an amount offsetting the amount of the Judgment
    and the respondents partial indemnity costs to the date of the second offer to
    settle. In my view, this submission gives undue weight to the offer to settle
    and fails to take into account any of the other matters to be considered under Rule
    57, which were resolved against the appellants.

[38]

I
    would allow the appeal and reduce the costs to be paid by the appellants to
    $100,000. In my view, this amount takes into consideration all the factors to
    be considered under Rules 49 and 57, including the complexity of the matter and
    the manner in which the litigation was conducted, and in particular that the
    offer to settle was virtually the same as the Judgment. This amount is more
    consistent with the objectives of fairness and reasonableness and especially
    gives some attention to the need for some proportionality.

DISPOSITION

[39]

Accordingly,
    I would allow the appeal, set aside the costs order made by the trial judge and
    reduce the award for costs to $100,000, inclusive of disbursements and HST.
    There was divided success on the appeal and I would order no costs of the
    appeal.

Released: KF July 11, 2014

M. Rosenberg J.A.

I agree. E.A. Cronk
    J.A.

I agree. M. Tulloch
    J.A.


