Manitoba Keewatinowi Okimakanak Inc. v. McIvor, 2007 MBCA 134

• Judge: Scott, C.J.M., Steel and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 11, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBCA 134;(2007), 220 Man.R.(2d) 240 (CA)

Man. Keewatinowi v. McIvor (2007), 220 Man.R.(2d) 240 (CA);

      407 W.A.C. 240

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. OC.041

Manitoba Keewatinowi Okimakanak Inc. (plaintiff/appellant) v. Greg McIvor (defendant/respondent)

(AI 07-30-06668; 2007 MBCA 134)

Indexed As: Manitoba Keewatinowi Okimakanak Inc. v. McIvor

Manitoba Court of Appeal

Scott, C.J.M., Steel and Chartier, JJ.A.

October 29, 2007.

Summary:

The defendant's employment was terminated by the plaintiff without just cause and he was paid a $150,000 severance payment. At trial, the plaintiff alleged that during the negotiations leading up to the severance payment, the defendant had materially misrepresented an essential term of the employment contract. The trial judge dismissed the action. The plaintiff appealed, alleging that the trial judge made palpable and overriding errors with respect to his factual findings and the inferences taken from those findings, that the trial judge erred in prohibiting cross-examination of the defendant on a statement of claim he had filed in another action, and that the trial judge erred in fixing costs at an "elevated level" because of the allegation of fraud.

The Manitoba Court of Appeal dismissed the appeal with respect to liability, but allowed the costs appeal and ordered that the defendant have party and party costs of the trial.

Practice - Topic 7113

Costs - Party and party costs - Special orders - Increase in scale of costs - For unproved allegations of fraud - [See Practice - Topic 7767.1 ].

Practice - Topic 7767.1

Costs - Special orders - Unproved allegation of fraud - The defendant's employment was terminated by the plaintiff without just cause and he was paid a $150,000 severance payment - At trial, the plaintiff alleged that during the negotiations leading up to the severance payment, the defendant had materially misrepresented an essential term of the employment contract - The trial judge dismissed the action and fixed costs at an "elevated level" because of the allegation of fraud - The Manitoba Court of Appeal allowed an appeal from the costs order and ordered that the defendant have party and party costs of the trial - The award of "elevated costs" could not stand alongside the trial judge's findings of fact that it was reasonable for the plaintiff to have made and pursued the allegations of fraud and that everything the plaintiff had done was reasonable - The only rationale provided by the trial judge was that the defendant alleged damage to his reputation - If damage to the defendant's reputation was to be recognized in an award of costs it had to be linked with some form of inappropriate conduct by the plaintiff.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 4].

Kerkowich v. Wawanesa Mutual Insurance Co., [2005] Man.R.(2d) Uned. 20; 19 C.C.L.I.(4th) 27; 2005 MBCA 33, refd to. [para. 4].

Chomichuk v. Merrifield and Merrifield (1983), 20 Man.R.(2d) 251 (C.A.), refd to. [para. 4].

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. 6].

Mele et al. v. Thorne Riddell et al. (1997), 26 O.T.C. 119; 32 O.R.(3d) 674 (Gen. Div.), refd to. [para. 12].

Robb v. Yukon Territory (1987), 2 Y.R. 224 (C.A.), refd to. [para. 14].

Counsel:

K.M. Saxberg, for the appellant;

D.G. Newman, Q.C., for the respondent.

This appeal was heard on October 11, 2007, before Scott, C.J.M., Steel and Chartier, JJ.A., of the Manitoba Court of Appeal. The Court of Appeal dismissed the appeal on liability from the bench and reserved its decision on the appeal with respect to costs. The court's decision on the costs appeal was delivered by Steel, J.A., on October 29, 2007.