Gordon A. Wiggins

The Court of Appeal for Ontario issued an endorsement on costs following an appeal.

The court ordered the appellant to pay the respondent's costs of the appeal, fixed at $20,000 inclusive of GST and disbursements, finding the amount fair and reasonable given the time spent, the amount in question, and the limited number of issues.

The appellant insurer appealed a trial judgment ordering it to pay the respondent caregiver benefits, compound interest, and to provide an offer for loss of earning capacity benefits (LECB) following a motor vehicle accident.

The insurer had terminated caregiver benefits based on a Designated Assessment Centre (DAC) report.

The Court of Appeal upheld the trial judge's findings that the respondent remained substantially disabled from performing caregiving tasks and suffered a diminished earning capacity.

The Court also affirmed that the unpaid benefits were 'overdue' under the Statutory Accident Benefits Schedule, thereby attracting compound interest.

The appeal was dismissed.

Following the release of reasons for judgment, the court received written submissions on costs of the cross-appeal.

On consent of the appellant in the cross-appeal, the court awarded costs of the cross-appeal to the respondents in the cross-appeal on a partial indemnity basis, fixed at $2,000 each.

The plaintiffs, Ontario residents, were injured in a motor vehicle accident in New York State involving a vehicle driven by a New York resident.

The plaintiffs sued in Ontario.

The defendant moved to determine the applicable law.

The Court of Appeal held that the substantive law of New York (lex loci delicti) applies, while the procedural law of Ontario (lex fori) applies.

The Court determined that costs and the cap on non-pecuniary damages are procedural matters governed by Ontario law, whereas pre-judgment interest is a substantive right governed by New York law.