COURT OF APPEAL FOR ONTARIO
2016 ONCA 181
Feldman, Cronk and Huscroft JJ.A.
BETWEEN
Diana Lynn Monk
Plaintiff/Responding Party (Appellant)
and
Farmers’ Mutual Insurance Company (Lindsay) and Muskoka Insurance Brokers Ltd.
Defendants/Moving Parties (Respondents)
David A. Morin, for the appellant
Martin P. Forget, for the respondent Farmers’ Mutual Insurance Company (Lindsay)
Demetrios Yiokaris, for the respondent Muskoka Insurance Brokers Ltd.
Heard: May 6, 2015
Released: December 23, 2015
On appeal from the order of Justice Edward J. Koke of the Superior Court of Justice, dated June 27, 2014, with reasons reported at (2014), 37 C.C.L.I. (5th) 92 (Ont. S.C.).
COSTS ENDORSEMENT
1The parties were unable to agree on costs following the court’s decision allowing the appeal in this matter. The appellant seeks costs for the motion and appeal.
The motion
2Counsel for the appellant seeks $125,000 in costs for the motion on a partial indemnity basis.
3The respondents submit that costs should be left to the motion judge, as there remains a live issue as to whether the claim is time-barred. In the alternative, the appellant should be awarded nothing, or no more than $10,000.
4The motion judge wrote lengthy reasons awarding the respondents $50,000 ($30,000 to Farmers and $20,000 to Muskoka) rather than the $141,000 they sought. The motion judge discounted the costs to the respondents because of concerns about access to justice and disproportionality, given the size of the claim.
5Those concerns are not relevant here. The appellant is entitled to costs on a partial indemnity basis, which should be fixed at $90,000, inclusive of taxes and disbursements. $55,000 shall be paid by Farmers and $35,000 by Muskoka.
The appeal
6Counsel for the appellant seeks $34,000 in costs for the appeal on a partial indemnity basis.
7At the hearing, counsel for the appellant stated clearly that, given the novelty of the issue and the importance of access to justice, he was not seeking costs even if he succeeded on the appeal. He maintained this position under questioning from the panel.
8Counsel cannot resile from the position maintained at the hearing.
9In the circumstances there is no order as to costs on the appeal.
Disposition
10Farmers shall pay the appellant $55,000. Muskoka shall pay the appellant $35,000. Both figures are inclusive of taxes and disbursements.
“K. Feldman J.A.”
“E.A. Cronk J.A.”
“Grant Huscroft J.A.”