König v. Hobza et al., (2015) 343 O.A.C. 331 (CA)

JudgeCronk, Epstein and Huscroft, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateNovember 09, 2015
JurisdictionOntario
Citations(2015), 343 O.A.C. 331 (CA);2015 ONCA 885

König v. Hobza (2015), 343 O.A.C. 331 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.031

Klaus-Peter König (plaintiff/appellant) v. Antonin Hobza, John Douglas Laine, Kim H. Dobson , John Anthony Chisholm and also known as Jack Chisholm, TJK Enterprises Limited and 1669051 Nova Scotia Limited (defendants/ respondents )

(C60361; 2015 ONCA 885)

Indexed As: König v. Hobza et al.

Ontario Court of Appeal

Cronk, Epstein and Huscroft, JJ.A.

December 15, 2015.

Summary:

The plaintiff was successful in an oppression action against the defendants, and was awarded his costs on a substantial indemnity basis. The trial judge considered an offer by the defendants, served only four days before the commencement of trial, to be a valid rule 49 offer, but held that rule 49.10 was not engaged because the trial judgment was more favourable than the offer. The defendants appealed.

The Ontario Court of Appeal, in a decision reported at (2014), 326 O.A.C. 213, upheld the finding of oppression but reduced the damages award. The Court remitted the matter back to the trial judge to consider the costs award in the light of the reduction in damages.

The Ontario Superior Court, in a decision reported at 2015 ONSC 411, found that the offer was more favourable than the revised judgment. The Court awarded the plaintiff his costs up to the date of the offer on a substantial indemnity scale, and awarded the defendants their costs thereafter, on a partial indemnity scale. The plaintiff sought and was granted leave to appeal.

The Ontario Court of Appeal dismissed the appeal. The trial judge erred in treating the offer to settle as a valid rule 49.10 settlement offer as it did not comply with the rule 49.03 seven-day service requirement. However, the trial judge was nonetheless entitled to exercise his discretion to fix costs under rule 49.13 and rule 57.01(1).

Practice - Topic 8

General principles and definitions - Effect of noncompliance with the rules - [See both Practice - Topic 7245.4 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - [See second Practice - Topic 7245.4 ].

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - The Ontario Court of Appeal held that the trial judge erred in treating the offer to settle as a valid rule 49.10 settlement offer as it did not comply with the rule 49.03 seven-day service requirement - "First, the requirement that, in order to attract the mandatory cost consequences of r. 49.10, an offer to settle must be served at least seven days before the commencement of the hearing, is contained within r. 49 itself. The wording of the provision makes clear that the timing requirement is just that - a requirement. It is mandatory. Second, ... the decision [Elbakhiet et al. v. Palmer et al. (2014) (O.A.C.)], supports the conclusion that the no 'near miss' policy should also apply to timing. ... [C]ertainty as to whether an offer meets the seven-day timing requirement also furthers the purposes of r. 49 by affording parties two important pieces of information. The first is whether the time has passed during which to expect an offer to settle that will attract the mandatory cost consequences under r. 49.10. The second is whether an offer will be treated as a valid r. 49 offer. Both are necessary for a party to be fully equipped to assess the risk of proceeding to trial." - See paragraphs 27 to 33.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - The Ontario Court of Appeal concluded that, although the trial judge should not have treated the offer to settle as a valid rule 49.10 offer (served fewer than seven days before trial), he was entitled to take it into account pursuant to rule 49.13 and pursuant to rule 57.01(1), which set out the general principles a court considered when exercising its discretion to award costs - "Rule 49.13 calls for a holistic approach to the determination of costs having regard to factors including any offers to settle - regardless of whether they meet the requirements of r. 49 - where appropriate to do justice between the parties. ... [I]n arriving at the award he did, the trial judge took into account the applicable relevant factors, including the Offer. He employed a holistic approach." - See paragraphs 34 to 43.

Cases Noticed:

Elbakhiet et al. v. Palmer et al. (2014), 323 O.A.C. 300; 121 O.R.(3d) 616; 2014 ONCA 544, leave to appeal refused, [2014] S.C.C.A. No. 427, appld. [para. 20].

Igbokwe v. HB Group Insurance Management Ltd. et al. (2001), 148 O.A.C. 222; 55 O.R.(3d) 313 (C.A.), leave to appeal refused (2002), 293 N.R. 196; 166 O.A.C. 200 (S.C.C.), refd to. [para. 27].

Brady (Matthew) Self Storage Corp. v. InStorage Limited Partnership et al. (2014), 327 O.A.C. 313; 125 O.R.(3d) 121; 2014 ONCA 858, refd to. [para. 27].

Wilson v. Cranley (2014), 325 O.A.C. 396; 2014 ONCA 844, refd to. [para. 36].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 44].

Statutes Noticed:

Rules of Court (Ont.), rule 49.03, rule 49.10(2), rule 49.10(3), rule 49.13 [para. 9].

Rules of Civil Procedure (Ont.) - see Rules of Court (Ont.).

Counsel:

Ronald Flom and Robert W. Trifts, for the appellant;

Sarit E. Batner and Vladimira Ivanov, for the respondents.

This costs appeal was heard on November 9, 2015, before Cronk, Epstein and Huscroft, JJ.A., of the Ontario Court of Appeal. In reasons written by Epstein, J.A., the Court delivered the following judgment, released on December 15, 2015.

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12 practice notes
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • June 10, 2020
    ...for Decision, Costs, Offers to Settle, Rules of Civil Procedure, Rules 49.19(2), 49.13, Moore v. Sweet, 2018 SCC 52, König v. Hobza, 2015 ONCA 885, Lawson v. Viersen, 2012 ONCA 25 Bowman v. Martineau, 2020 ONCA 330 Keywords: Contracts, Real Property, Agreement of Purchase and Sale of Land, ......
  • Tarrington v. Havcare Investments Inc.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • October 18, 2022
    ...refused [2014] S.C.C.A. No. 427, at para. 35; Wilson v. Cranley, 2014 ONCA 844, 325 O.A.C. 396, at para. 26; and König v. Hobza, 2015 ONCA 885, at paras. 35 and [23]           I hasten to add that the holistic approach does not mean tha......
  • Welton v. United Lands Corporation Limited,
    • Canada
    • Court of Appeal (Ontario)
    • May 27, 2020
    ...discretion under r. 49.13 to impose r. 49.10(2) costs consequences on the appellant based on this court’s decision in König v. Hobza, 2015 ONCA 885, 129 O.R. (3d) 57. He accepted the respondents’ submission that there was ample time for the appellant to deal with the offer even though it wa......
  • Crafting The Perfect Rule 49 Offer
    • Canada
    • Mondaq Canada
    • November 13, 2017
    ...9 to 12 and 32. 16 Elbakhiet supra note 1 at para 31. See also McLeish v. Daines, 2017 ONSC 3117 at paras 13 to 15. 17 König v. Hobza, 2015 ONCA 885, at para 18 Cadieux (Litigation guardian of) v. Cloutier, 2016 ONSC 7604, at paras 58 to 68. 19 See Mayer supra note 2, where Justice Leach aw......
  • Request a trial to view additional results
9 cases
  • Tarrington v. Havcare Investments Inc.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • October 18, 2022
    ...refused [2014] S.C.C.A. No. 427, at para. 35; Wilson v. Cranley, 2014 ONCA 844, 325 O.A.C. 396, at para. 26; and König v. Hobza, 2015 ONCA 885, at paras. 35 and [23]           I hasten to add that the holistic approach does not mean tha......
  • Welton v. United Lands Corporation Limited,
    • Canada
    • Court of Appeal (Ontario)
    • May 27, 2020
    ...discretion under r. 49.13 to impose r. 49.10(2) costs consequences on the appellant based on this court’s decision in König v. Hobza, 2015 ONCA 885, 129 O.R. (3d) 57. He accepted the respondents’ submission that there was ample time for the appellant to deal with the offer even though it wa......
  • Bon Rathwell Howland v. The Estate of Pamela Howland, 2019 ONSC 749
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • April 12, 2019
    ...rule 49.13 says that any offer to settle in writing “may” be considered when costs are awarded, in König v. Hobza, 2015 ONCA 885, 129 O.R. (3d) 57, at para. 35, the Court of Appeal made it clear that offers must be considered, even if they do not comply with rules 49.03, ......
  • Bloor Parliament (Block A) Investments Limited v. Sherbourne Residential (Concert) LP,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • February 4, 2021
    ...(Block A) Investments Limited v. Sherbourne Residential (Concert) LP, 2020 ONSC 7597. [2] R.R.O. 1990, Reg. 194. [3] König v. Hobza, 2015 ONCA 885. [4] Mcdonald v. Anishinabek Police Service, [2007] O.J. No. 424 at para. 30 (Div. Ct.). [5] R.S.O. 1990, c. C-43. [6] McCracken v. Canadian Nat......
  • Request a trial to view additional results
3 firm's commentaries
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • June 10, 2020
    ...for Decision, Costs, Offers to Settle, Rules of Civil Procedure, Rules 49.19(2), 49.13, Moore v. Sweet, 2018 SCC 52, König v. Hobza, 2015 ONCA 885, Lawson v. Viersen, 2012 ONCA 25 Bowman v. Martineau, 2020 ONCA 330 Keywords: Contracts, Real Property, Agreement of Purchase and Sale of Land, ......
  • Crafting The Perfect Rule 49 Offer
    • Canada
    • Mondaq Canada
    • November 13, 2017
    ...9 to 12 and 32. 16 Elbakhiet supra note 1 at para 31. See also McLeish v. Daines, 2017 ONSC 3117 at paras 13 to 15. 17 König v. Hobza, 2015 ONCA 885, at para 18 Cadieux (Litigation guardian of) v. Cloutier, 2016 ONSC 7604, at paras 58 to 68. 19 See Mayer supra note 2, where Justice Leach aw......
  • Court Of Appeal Summaries (December 14- 18)
    • Canada
    • Mondaq Canada
    • December 30, 2015
    ...to reflect the appellant's child support obligations based on the table calculation under the Child Support Guidelines. König v. Hobza, 2015 ONCA 885 [Cronk, Epstein and Huscroft Ronald Flom and Robert W. Trifts, for the appellant Sarit E. Batner and Vladimira Ivanov, for the respondents Ke......

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