



COURT OF APPEAL FOR ONTARIO

CITATION: Granger v. Granger, 2017 ONCA 110

DATE: 20170209

DOCKET: C61292

Cronk, Juriansz and Brown JJ.A.

BETWEEN

John Granger

Appellant (Respondent/Counter-Applicant)

and

Katarina Granger and Helena Granger

Respondents (Applicants/Counter-Respondents)

Saba Ahmad and Michael Hackl, for the appellant

Bruce Baron and Maija Pluto, for the respondents

Reasons released: December 15, 2016

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 20, 2015, with reasons reported at
    2015 ONSC 6238 and the application decision of March 23, 2015, with reasons
    reported at 2015 ONSC 1711.

COSTS ENDORSEMENT

[1]

On appeal, this court concluded the appellant should have been
    successful at trial and awarded him damages in the amount of
$438,113, in addition to
    other relief.

[2]

Before trial, the appellant made a r. 49 offer to settle for $180,000.
    He is entitled to the application of r. 49.10. As Morden J.A. noted in
Niagara
    Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd.
(1987), 58 O.R.
    (2d) 773 (C.A.), at p. 777, r. 49.10 is intended to be an incentive to the
    settlement of litigation  the occasions for the application of the exception
    should not be so widespread or common that the result would be that the general
    rule is no longer, in fact, the general rule. It should only be departed from
    where the interests of justice require a departure.

[3]

This is not one of the unusual cases in which the general rule should
    not be applied. The appellant is entitled to partial indemnity costs to
    September 10, 2015, the date of his r. 49 offer, and to substantial indemnity
    costs thereafter to the end of the trial.

[4]

However, we also agree with respondents counsel that a significant
    portion of the trial was devoted to testing claims the appellant made which the
    trial judge found to be untrue. Many of those findings were undisturbed on
    appeal. In other words, even in light of the corrections this court made on appeal,
    the trial was not an unqualified success for the appellant. The costs award
    must reflect this.

[5]

After reviewing counsels detailed bill of costs, and taking into
    account the factors above, we conclude the appellant is entitled to partial
    indemnity costs to September 10, 2015 in the amount of $35,000 and substantial
    indemnity costs from September 10, 2015 to the end of trial in the amount of
    $32,000. The appellants costs for the proceedings below are fixed in the
    amount of $67,000 inclusive of disbursements and applicable taxes below.

[6]

The appellants costs of the appeal are fixed in the amount of $15,000,
    including disbursements and applicable taxes.

"E.A. Cronk J.A."

"R.G. Juriansz J.A."

"David Brown J.A."


