COURT OF APPEAL FOR ONTARIO
Lang, Juriansz and Epstein JJ.A.
BETWEEN
Bridgette Sagl
Plaintiff (Respondent)
and
Cosburn, Griffiths & Brandham Insurance Brokers Limited, Chubb Insurance Company of Canada, Eamonn Kinsella and G.C. Carley & Co. Limited
Defendants (Appellant)
Peter H. Griffin and Jamie J.W. Spotswood, for the appellant
Barry A. Percival, Q.C., for the respondent
On appeal from the judgment of Justice Blenus Wright of the Superior Court of Justice dated September 4, 2007, with reasons reported at (2007), 2007 CanLII 36644 (ON SC), 54 C.C.L.I. (4th) 236.
ADDENDUM AND COSTS ENDORSEMENT
I. Supplementary Issues
1In reasons released May 8, 2009, the appeal by Chubb Insurance Company of Canada was allowed, the judgment below set aside and a new trial was ordered “restricted solely to the issue of the respondent, Bridgette Sagl’s, proof of loss, specifically whether she is able to prove her loss in relation to her fine arts collection, and whether the insurance policy is void due to intentional misrepresentation in the proof of loss”. Further, if appropriate, the new trial would include a consideration of the application of s. 129 of the Insurance Act of Ontario.
2The parties were invited to make written submissions as to costs. Counsel for Sagl and Chubb responded by making submissions regarding costs and the scope of the new trial.
3In my view, the reasons are clear that as far as Sagl’s proof of loss is concerned, the new trial will be restricted to Sagl’s proof of loss in relation to her fine arts collection. This restriction applies both to whether Sagl is able to prove her loss in relation to her fine arts collection and whether the policy is void due to her intentional misrepresentation in the proof of loss as it relates to the fine arts collection.
4The punitive damage award made by the trial judge in the first trial has been set aside. The trial judge presiding over the second trial is entitled to consider Sagl’s claim for punitive damages based on the findings of fact made in the second trial and the relevant findings of fact made by the trial judge in the first trial that have not been reversed by this court.
5As the reasons indicate, the trial judge is entitled to consider the application of s. 129 of the Insurance Act as may be appropriate.
6The trial judge presiding over the second trial will be entitled to rule on the costs of the first trial and the second trial, with one exception. That exception is the cost order made by the trial judge who presided over the first trial regarding the costs of Cosburn, Griffiths, & Brandham Insurance Brokers Limited (“CG&B”). The trial judge ordered Chubb to pay CG&B’s costs on a partial indemnity basis. CG&B was specifically not brought into the appeal. The trial judge’s costs award in its favour stands.
II. Costs of the Appeal
7On a partial indemnity scale, Chubb seeks a total of $108,657.38. Sagl submits she is entitled to her costs in the amount of $91,808.92; alternatively, that there be no order as to costs due to divided success. I do not accept that Sagl is entitled to costs. While Chubb was not successful on every issue, and only abandoned its appeal regarding arson in its factum, it was successful in obtaining an order for a new trial. In these circumstances, Chubb is entitled to costs.
8This appeal was argued over the course of a better part of a day. It involved the review of evidence following a lengthy trial and complex legal issues. Sagl’s claim is large. Taking into account the result and the reasonable expectations of the parties, I would fix Chubb’s costs in this court on a partial indemnity scale in the amount of $50,000, inclusive of its disbursements of approximately $23,000 and Goods and Services Tax.
“G. Epstein J.A.”
“I agree S.E. Lang J.A.”
“I agree R.G. Juriansz J.A.”