Canadian Universities' Reciprocal Insurance v. Halwell Mutual Insurance Company, 2002 ONCA 5223

Case Summary

The respondents sought substantial indemnity costs of over $66,000 for an appeal, relying on an offer to settle. The Court of Appeal held that Rule 49 does not apply to appeals and that substantial indemnity costs are reserved for exceptional circumstances, which were not present. The appellant argued the old costs regime should apply as the appeal was argued before the new costs grid took effect. Following recent jurisprudence, the Court confirmed the new costs grid is procedural and applies retroactively to costs awarded after its implementation. The respondents were awarded partial indemnity costs of $22,000 in fees plus disbursements.

DATE: 20021122

DOCKET: C31352

COURT OF APPEAL FOR ONTARIO

RE: CANADIAN UNIVERSITIES' RECIPROCAL INSURANCE (Plaintiff (Appellant)) - and - HALWELL MUTUAL INSURANCE COMPANY and WELLINGTON INSURANCE COMPANY and CO-OPERATORS GENERAL INSURANCE COMPANY (Defendants (Respondents))

BEFORE: McMurtry C.J.O., Borins and Feldman JJ.A.

COUNSEL: Patrick J. Monaghan For the appellant

Theodore H. Rachlin, Q.C. For the respondent

JUDGMENT RELEASED: August 30, 2002

E N D O R S E M E N T

COSTS AWARD

[1] Costs were awarded to the respondent on the partial indemnity scale. The respondent seeks a total of $66,037.86 in fees and disbursements for the appeal using the substantial indemnity scale because of an offer to settle. The appellant suggests that the appropriate amount is $13,500. plus disbursements and G.S.T.

[2] Rule 49 is not applicable to cases on appeal. Although offers to settle made in cases on appeal can be relevant in assessing costs, this is not a case where an offer to compromise on costs ought to affect the result. Substantial indemnity costs are reserved for special cases with particular types of circumstances which warrant exceptional treatment. This is not such a case.

[3] The appellant also submits that as this case was fully argued prior to the advent of the new costs grid, the old costs regime ought to apply. This court has recently dealt with that issue in the case of Canadian Broadcasting Corp. Pension Plan (Trustee of) v. BF Realty Holdings Ltd., 2002 15157 (ON CA), [2002] O.J. No. 4313 (C.A.) (addendum to original judgment (November 13, 2002) 2002 44954 (ON CA), [2002] O.J. No. 2125 (C.A.)), wherein the court held that the new costs grid is procedural and therefore retroactive in its application, as long as the costs were awarded after the new grid came into effect. There remains a discretion for exceptional circumstances. In this case, the new costs grid applies.

[4] On a partial indemnity scale, the respondent is awarded costs in the amount of fees of $22,000, together with disbursements claimed of $361.79, plus G.S.T.

Signed: "R. Roy McMurtry C.J.O."

"S. Borins J.A."

"K. Feldman J.A."

Canadian Universities' Reciprocal Insurance v. Halwell Mutual Insurance Company, 2002 ONCA 5223

Case Summary

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