DATE: 20060829

DOCKET: C43657

COURT OF APPEAL FOR ONTARIO

RE:

IN THE MATTER OF AN APPLICATION BY CAVELL INSURANCE COMPANY LIMITED UNDER THE RECIPROCAL ENFORCEMENT OF JUDGMENTS (U.K.) ACT, R.S.O. 1990, c. R. 6, SECTION 106 OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, c. C.43 and Rule 73 of the RULES OF CIVIL PROCEDURE (ONTARIO) R.R.O. 1990, REG. 194, IN RESPECT OF A SCHEME OF ARRANGEMENT OF CAVELL INSURANCE COMPANY LIMITED PURSUANT TO SECTION 425 OF THE COMPANIES ACT 1985 OF GREAT BRITAIN

BEFORE:

ROSENBERG, GOUDGE AND SIMMONS JJ.A.

COUNSEL:

David Hager for the appellant Pilot Insurance Company

Elizabeth Pillon for the respondent Cavell Insurance Company Limited

Graham D. Smith for the intervener Reliance Insurance Company

HEARD:

Heard: November 29, 2005

JUDGMENT RELEASED:

May 23, 2006

On appeal from the orders of Justice James M. Farley of the Superior Court of Justice dated December 21 and February 17, 2005.

C O S T S E N D O R S E M E N T

[1] Following the release of our reasons for decision in which we ordered that there be no costs of the appeal because none were requested, the respondent wrote to the Court to say that this was a misunderstanding of the position it had taken and seeking to make submissions on costs.

[2] The court agreed and has received and has reviewed the written submissions on costs filed by the appellant, the respondent and the intervener.

[3] The respondent seeks costs of the appeal on a partial indemnity basis but only against the appellant. The appellant proposes no costs.

[4] In our view, our previous costs order should be amended to provide for costs on a partial indemnity basis to the respondent in the amount of $15,000.00. This reflects the reality that the respondent was successful in resisting the appeal but it also takes into account that the issue is a novel one, that costs are being sought only against the appellant and therefore should not include costs claimed to respond to the intervener, and the nature and complexity of the appeal.

[5] Taking these factors into account, in our view, costs in the amount of $15,000.00 inclusive of disbursements and G.S.T. represents a reasonable partial indemnity recovery.

Signed: “M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”