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The successful appellant was awarded its requested partial indemnity trial costs, including reasonably incurred expert disbursements.
The Court of Appeal for Ontario issued a costs endorsement following its decision to allow the appeal brought by Factory Mutual Insurance Company (FM Global) against MDS Inc. and MDS (Canada) Inc. The original appeal concerned insurance coverage for losses from an unplanned reactor shutdown, where the Court found no coverage.
This endorsement addresses the quantum of trial costs to be awarded to FM Global, which was entirely successful on appeal.
The court considered factors under s. 131(1) of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure, including the complexity of issues, counsel rates, and the recoverability of expert disbursements.
The court dismissed a motion to exclude a defence expert's report, finding it did not constitute improper oath helping and met admissibility requirements.
The Plaintiffs brought a motion to exclude the report and viva voce evidence of the defence expert, Dr. Revie, or alternatively, to limit his evidence to the four corners of his report.
The Plaintiffs argued that Dr. Revie's report constituted oath helping, was merely a critique, failed to comply with Rule 53.03(2.1), and did not meet the common law test for expert evidence admissibility.
The court dismissed the motion, finding that the report, despite some unfortunate wording, did not amount to oath helping in this context, went beyond mere critique, and met the common law admissibility requirements under *Mohan* and *White Burgess*.
The request to limit Dr. Revie's evidence was declined for a pre-trial ruling.
