



COURT OF APPEAL FOR ONTARIO

CITATION:
Dawe v. The Equitable Life Insurance Company of Canada, 2019
    ONCA 744

DATE: 20190920

DOCKET: C65540

Pepall,
    Trotter and Harvison Young JJ.A.

BETWEEN

Michael Dawe

Plaintiff

(Respondent)

and

The Equitable Life Insurance
    Company of Canada

Defendant

(Appellant)

Michael A. Hines and Amanda J. Hunter,
    for the appellant

Andrew F. Camman, Susan A. Toth and
    Sarah Bauer, for the respondent

Heard: February 4, 2019

On appeal from the judgment of Justice
    Donald J. Gordon of the Superior Court of Justice dated May 23, 2018, with
    reasons reported at 2018 ONSC 3130.

Costs endorsement

[1]

This court allowed the appeal of Equitable Life
    in part, reducing the period of reasonable notice. Apart from adjusting Mr.
    Dawes damages for bonus entitlement to accord with the new notice period, it
    dismissed Equitable Lifes other arguments on this issue:
Dawe v. The
    Equitable Life Insurance Company of Canada
, 2019 ONCA 512. The court
    invited submissions on costs, establishing certain deadlines for filing. The
    parties requested and received an extension of time to file these submissions
    as they attempted to settle outstanding matters between them. They were unable
    to settle some or all of their issues.

[2]

The parties sought clarification of this courts
    judgment in terms of damages for Mr. Dawes bonus entitlement. The parties were
    permitted to exchange and file written submissions on the bonus entitlement
    issue and costs.

[3]

On the issue of bonus entitlement, Equitable
    Life submits that Mr. Dawe is not entitled to damages for the bonus that would otherwise
    have been paid to him in early 2018 for the previous year because, as this
    court determined, his notice period ended in 2017. According to Equitable Life,
    Mr. Dawe is not entitled to any damages for bonus entitlements earned in 2017.

[4]

Mr. Dawe submits that the motion judge held that
    he was entitled to be paid damages for bonus payments in full during the
    notice period. Mr. Dawe argues that Equitable Life did not appeal this aspect
    of the motion judges decision and that Equitable is attempting to re-litigate
    issues already decided.

[5]

We agree with Mr. Dawe. The motion judge
    determined that Mr. Dawe was entitled to damages for full bonus payments to
    the end of the notice period. The motion judge intended that Mr. Dawe receive
    damages for earned bonus payments until the end of the notice period (in 2017)
    on a
pro rata

basis and this court determined the bonus issue on
    this basis. We decline to entertain this new issue raised by Equitable Life at
    this stage.

[6]

The parties have agreed on the costs to be paid
    to Mr. Dawe for the motion. It is not necessary for this court to make any
    order on this issue.

[7]

In terms of costs of the appeal, Equitable Life
    claims success and requests $37,612.81, plus disbursements and taxes. Mr. Dawe submits
    that, of the two issues on appeal, the far greater damages value rests in the
    bonus entitlement, not in the notice period. He also submits that he has
    incurred additional costs from Equitable Lifes attempt to raise new arguments
    in the guise of seeking clarification of the courts judgment. He seeks
    $20,000 for the appeal, and a further $5,000 relating to the new arguments
    raised by Equitable Life at this stage.

[8]

We agree with Mr. Dawe. He is entitled to costs in
    the amount of $25,000, inclusive of taxes and disbursements.

S.E. Pepall J.A.

Gary Trotter J.A.

A. Harvison Young J.A.


