S & A Strasser Ltd. v. Richmond Hill (Town) et al., (1990) 45 O.A.C. 394 (CA)

• Judge: Blair, Finlayson and Carthy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 18, 1990
• Jurisdiction: Ontario
• Citations: (1990), 45 O.A.C. 394 (CA);1990 CanLII 6856 (ON CA);1990 CanLII 6856 (NS CA);1 OR (3d) 243;[1990] CarswellOnt 435;[1990] OJ No 2321 (QL);24 ACWS (3d) 597;45 OAC 394;49 CPC (2d) 234

S&A Strasser Ltd. v. Richmond Hill (1990), 45 O.A.C. 394 (CA)

MLB headnote and full text

S & A Strasser Limited (plaintiff/appellant) v. The Corporation of the Town of Richmond Hill, Captain Developments Limited and Parkway Hotels Limited (defendants)

(374/90)

Indexed As: S & A Strasser Ltd. v. Richmond Hill (Town) et al.

Ontario Court of Appeal

Blair, Finlayson and Carthy, JJ.A.

December 18, 1990.

Summary:

The defendant Captain Developments offered to settle the action against it prior to trial. The trial judge dismissed the action against Captain and awarded Captain solicitor and client costs from the point of the institution of the action. The plaintiff appealed the order for costs, with leave.

The Ontario Court of Appeal allowed the appeal and awarded Captain solicitor and client costs following the date of the offer of settlement and party and party costs up to that date.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - Rule 49.10 concerned the cost consequences of failure to accept an offer of settlement - The Ontario Court of Appeal explained the difference between the costs awarded to a plaintiff as opposed to a defendant - The court noted that the rule had no application where the plaintiff failed to recover any judgment - See paragraphs 3 to 4.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiffs claimed $1 million in their statement of claim, scaled down to some $70,000 just prior to trial - The defendant made an offer of settlement of $30,000 after discovery and before trial - The action was dismissed with solicitor and client costs to the defendant from the point of institution of the action - The Ontario Court of Appeal, considering the amount of the offer, its date and rule 57.01, awarded solicitor and client costs to the defendant following the date of the offer and party and party costs up to that date.

Cases Noticed:

Foulis v. Robinson (1978), 92 D.L.R.(3d) 134 (Ont. C.A.), refd to. [para. 9].

Isaacs v. M.H.G. International Ltd. (1984), 3 O.A.C. 301; 7 D.L.R.(4th) 570 (C.A.), refd to. [para. 9].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 49.10 [para. 3]; rule 49.13 [paras. 5-6, 8]; rule 57.01 [paras. 6, 11].

Counsel:

Mark Freed, for the plaintiff/appellant;

F. Paul Morrison, for the defendants.

This appeal was heard before Blair, Finlayson and Carthy, JJ.A., of the Ontario Court of Appeal on October 18, 1990. The decision of the Court of Appeal was delivered by Carthy, J.A., and released on December 18, 1990.