Atlantic Towing Ltd. v. Engine and Leasing Co.
A-167-92
Décary J.A.
1/12/93
7 pp.
Application under RR. 337(5) and 344(7) for special order as to costs in appeal and for reconsideration of order for costs made in appeal -- Appeal dismissed with respect to liability, granted in part with respect to quantum -- Court awarding appellant one third of costs on appeal -- Respondents submitting order as to costs in appeal should be revisited because (a) appellant refusing firm offers of settlement; (b) argument retained by Court to reduce amount of damages not expressly pleaded -- Appellant rejecting offer of settlement representing approximately 50% of final award before trial -- After notice of appeal filed respondents offering to settle for reduction of $250,000 on amount otherwise payable on judgment obtained -- Appellant not even acknowledging receipt of offer -- Although parties agreeing at beginning of trial would be reference as to damages if necessary, Trial Judge holding unnecessary and causing undue delay -- During argument respondents preparing untested figures, later used by Trial Judge in reasons -- On appeal appellant questioning some of figures submitted to Trial Judge -- Court of Appeal examining whole of evidence and finding in it things not specifically brought to its attention by counsel -- Application dismissed -- (a) Court not considering offers of settlement made before trial beginning -- Only relevant to application before Trial Judge -- Only concerned with what happened during appeal proceedings -- As Court of Appeal reducing Trial Judge's award by $450,000 respondents' offer way off final mark -- Appellant better off after judgment on appeal than would have been had it accepted offer prior to hearing of appeal -- (b) In context not speaking of grounds not argued -- Federal Court Rules, C.R.C., c. 663, RR. 337(5), 344(3)(g) (as am. by SOR/87-221, s. 2), (7) (as am. idem).