





CITATION:
Muskoka Fuels v. Hassan Steel
          Fabricators Limited, 2011 ONCA 495



DATE: 20110706



DOCKET: C51518



COURT OF APPEAL FOR ONTARIO



Rosenberg, Feldman and Juriansz JJ.A.



BETWEEN



Muskoka Fuels



Plaintiff (Respondent)



and



Hassan Steel Fabricators Limited



Defendant (Appellant)



Shannon Puddister and Louise Moher, for the appellant



David Zuber and Karim Hirani, for the respondent



Heard: February 1, 2011



On appeal from
          the judgment of Justice Susan E. Healey of the Superior Court of Justice
          dated December 11, 2009, with reasons for judgment reported at 2009 CanLII
          78887 (ON S.C.) and reasons for costs reported at 2010 ONSC 1221.



COSTS ENDORSEMENT

[1]

We
    dismissed this appeal and allowed the respondents cross-appeal of the trial
    judges costs decision on May 6, 2011, and asked for written submissions on
    costs of the trial and the appeal.

[2]

The
    parties have agreed on costs of the appeal and cross-appeal in the amount of
    $10,000 inclusive of disbursements and applicable taxes.

[3]

The
    respondent has submitted a Bill of Costs seeking a total of $76,244.00 in trial
    fees. Several factors are particularly relevant in determining the costs of the
    trial.

[4]

Before
    trial, the respondent made a Rule 49 offer to settle dated September 4, 2008.
    However, departure from the normal operation of the rule is warranted because
    the statement of claim was amended in April 2009 to add a claim for breach of
    s. 15 of the
Sale of Goods Act
,
    R.S.O. 1990,
c
. S-1. That claim was the basis on which
    this court dismissed the appeal. We would not award the respondent substantial
    indemnity costs before the date of the amendment.

[5]

We
    also consider that the preparation time of the action, and to some extent the
    trial time, were unduly lengthened by causes of action that ultimately played
    no role in the appellants liability.

[6]

As
    well, the amount the respondent seeks for costs is disproportionate to the
    amount recovered at trial: $66,380.39 plus prejudgment interest. For example,
    the amount included in the Bill of Costs for time travelling and $4,100 for the
    preparation of the Bill of Costs is disproportionate to the size and recovery
    of the claim.

[7]

Considering
    these factors, we fix the respondents costs of the trial in the amount of
    $35,000 plus disbursements in the agreed upon amount of $24,607.01, plus
    applicable taxes.

M. Rosenberg J.A.

K. Feldman J.A.

R.G. Juriansz J.A.


