[1]               The plaintiff’s employment was terminated without cause.  He brought a motion for summary judgment claiming damages in lieu of notice.  The employer appeals from the judgment of Allen J. awarding damages calculated on the basis of a six month notice period.  It alleges that there were material issues of fact requiring a trial, that the appropriate notice period was four to five months rather than the six months awarded, and that the plaintiff did not make sufficient efforts to mitigate his damages.

[2]               In our view, the motion judge was correct in finding that there were no material facts in dispute requiring a trial.  There was no dispute as to the nature of the plaintiff’s position, his title, his duties or the fact that he had one employee who reported to him.  There was no dispute as to the nature of the positions he applied for after termination, nor the other positions for which the employer said he should have applied.  What was in dispute were the inferences to be drawn from this undisputed evidence. 

[3]               There was no basis to conclude that the motion judge erred in granting damages calculated on the basis of six months notice or in finding that the employee’s mitigation efforts were sufficient. 

[4]               The parties concede that she erred in calculating the damages attributable to the loss of benefits by extending those damages over a one year period rather than the six months.  On this basis, the damages should be reduced by $2,800.00. 

[5]               There is also an issue related to the continuation of some benefits over the five weeks following termination when his salary continued.  There was no basis on the record to calculate the value of the portion of benefits which continued during this five week period and we would not make any further adjustments to the damages awarded.  Counsel for the appellant conceded that some of the benefits did not continue. 

[6]               While the motion judge misspoke in referring to dismissing the motion when she clearly granted it and in referring to an onus upon the defendant on a motion for summary judgment (see paragraphs 3 and 22 of her Reasons), we are not persuaded that she erred in applying Rule 20.02(2) which provides:

[7]               Both parties seek leave to appeal costs and we grant leave.  The motion judge awarded partial indemnity costs to the plaintiff in the sum of $10,000.00 without the benefit of submissions from either party.  The plaintiff then, in written submissions, brought to the attention of the motion judge an offer to settle dated May 5, 2010, in which the plaintiff offered to settle for less than half the amount ultimately awarded. 

[8]               The motion judge did not change her costs endorsement and gave no reason for failing to do so and in this respect she erred in law.  Tausendfreund J. set out the principles applicable to the costs consequences of Rule 49 in Estate of Brisco v. Canadian Premiere Life Insurance, ONSC, 2010/10/05 at paragraph 10:

[9]               The motion judge erred in failing to award substantial indemnity costs from the date of the offer by the plaintiff.  The plaintiff’s full indemnity costs were $24,173.28.  Partial indemnity costs were awarded in the sum of $10,000.00.  The plaintiff said seventy-five percent of the work was done after the offer to settle.  Having regard to the principle of proportionality, the plaintiff should have received $18,000.00 in costs, rather than the $10,000.00 awarded to reflect the significance of the offer to settle. 

[10]           We see no merit to the employer’s argument that the costs awarded should be reduced by $1,000.00 to reflect the concession by the employee that his position was a mid to low level management position.

[11]           Accordingly, the judgment of the motion judge is amended to reduce the damages awarded by $2,800.00 and to increase the costs awarded to $18,000.00.

[12]           The plaintiff was largely successful in this appeal and should recover partial indemnity costs.  Again, with regard to the principle of proportionality, we award the respondent on the appeal costs fixed at $8,500.00, all inclusive.