R. Nairn Waterman

The appellant succeeded on appeal in obtaining a new trial on damages for one of its breach of contract claims against the respondent.

In this costs endorsement, the Court of Appeal awarded the appellant $50,000 in partial indemnity costs for the appeal.

For the trial costs, the court found that despite the appellant's limited success on appeal, the respondent remained the overwhelmingly successful party at trial, having defeated five of six claims totaling $121 million.

The court reduced the trial judge's costs award to the respondent to reflect the appellant's partial success and the removal of a Rule 49 substantial indemnity consequence, awarding the respondent $753,076.37 in trial costs.

The appellant, an independent power producer, appealed a trial judgment that found the respondent breached a power purchase agreement but awarded no damages due to unreliable evidence.

The trial judge had concluded that the respondent failed to include an inter-area transmission credit in its avoided costs calculations, but dismissed the damages claim because the appellant's expert evidence was deemed unreliable.

The Court of Appeal upheld the finding of breach but held that the trial judge erred in dismissing the damages claim entirely.

Relying on Martin v. Goldfarb, the Court found that where a significant loss is proven but the quantum is difficult to assess, the plaintiff should not be denied compensation.

The appeal was allowed and a new trial on damages was ordered.

The parties agreed on the disposition of costs following an appeal and cross-appeal.

The Court of Appeal ordered the appellants to pay costs to the respondent, Commercial Union Life Assurance Company of Canada.

Specifically, Steven Michael Overgaard was ordered to pay $25,000, JIIG Holdings Inc. was ordered to pay $20,000 for abandoned grounds of appeal, and MHI Brokers Ltd., JIIG Holdings Inc., and Steven Michael Overgaard were ordered to jointly and severally pay $5,000 for the cross-appeal.

The appellants appealed a trial judgment finding that their company held insurance premiums in trust for the respondent insurer and that the individual appellant, as the directing mind of the company, was personally liable for knowing assistance in a breach of trust for withholding those premiums.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that a statutory trust existed under s. 402(1) of the Insurance Act, which applies to both licensed and unlicensed agents, and that an express trust existed at common law.

The Court also affirmed that the individual appellant was personally liable because he directed the company to take a knowingly wrongful risk to the prejudice of the insurer.

The appellant appealed a judgment regarding the integration of his pension and his entitlement to life insurance.

The Court of Appeal questioned its jurisdiction to hear the matter under section 50 of the Arbitration Act, 1991, but heard the merits as both parties submitted the proceeding below sought declarations beyond the arbitrated issues.

The Court held it had no jurisdiction over the pension integration issue because the parties' agreement required arbitration for pension disputes with no recourse to the courts.

On the life insurance issue, the appellant failed to provide material demonstrating he had not received the normal retiring benefit.

The appeal was dismissed.