



COURT OF APPEAL FOR ONTARIO

CITATION: Whiteside v. Celestica International Inc., 2014
    ONCA 499

DATE: 20140626

DOCKET: C56676

Blair, Watt and Lauwers JJ.A.

BETWEEN

Jim Whiteside
, Jason Wright, Steve Wilson
    and
3077187 Canada Ltd.

Plaintiffs (Appellants)

and

Celestica International Inc.

Defendants (Respondents)

Peter N. Mantas, for the appellants

R. Seumas M. Woods and Dustin Kenall, for the respondent

Heard: January 20, 2014

COSTS ENDORSEMENT

[1]

On May 23, 2014, the Court released it reasons in this matter, allowing
    the appeal and directing a new trial on certain issues. On the issue of costs,
    the Court provided that, if the parties were unable to agree, they could make
    brief written submissions. They could not agree and have done so. This is our
    decision as to costs, having reviewed their brief written submissions.

[2]

The appellants argue that, although a new trial was ordered on certain
    issues, they were nonetheless substantially successful on the appeal. They
    claim a total of $52,994.52 on a partial indemnity basis, inclusive of taxes
    and disbursements. The respondent argues that the appellants were not
    substantially successful, that success was divided, and that the appellants
    should be awarded an all-inclusive sum of $25,000 or about one-half of their
    claim. The respondent submits, in any event, that the amount claimed by the
    appellants is excessive having regard to the nature of the appeal.

[3]

We agree with the appellants that they were substantially successful on
    the appeal. The Court ruled in their favour (a) in concluding that the total
    NEC Project EBIAT was to be included in the calculation of the Total EBIAT, and
    therefore credited towards the Earn-Out Payments, and (b) in setting aside the
    trial judges finding that even if the total NEC Project EBIAT were included in
    the calculation of the Total EBIAT, the thresholds necessary to trigger the Earn-Out
    Payments had not been met. The calculations flowing from those conclusions were
    referred to a new trial, but the two issues on which the appellants succeeded
    were what was necessary to cut the Gordian knot for the purposes of those
    calculations.

[4]

We are satisfied that some reduction is in order to recognize the
    divided success, but not to the extent sought by the respondent.

[5]

Nor are we persuaded that the amount claimed by the appellants is unreasonable.
    This was a complex commercial case involving considerable preparation. The
    amounts in issue are significant for the appellants.

[6]

We order that the appellants are entitled to their costs of the appeal,
    fixed in the amount of $45,000 all-inclusive. It is an amount that is fair and
    reasonable for the respondent to have expected to pay:
Boucher v. Public
    Accountants Council (Ontario)
(2004), 71 O.R (3d) 291.

[7]

Both parties agree that the costs of the first trial should be left to
    the discretion of the judge hearing the new trial. Accordingly, the trial
    judges decision on costs dated February 25, 2014 is set aside and those costs
    are remitted to the judge hearing the new trial for determination.

R.A. Blair J.A.

David Watt J.A.

P. Lauwers J.A.


