DATE: 20020715 DOCKET: C35934, C37455, C36006, C35699, C36992
COURT OF APPEAL FOR ONTARIO
RE:
CHRIS MUSCUTT and DAISY JOHNSTON (Plaintiffs/ Respondents) – and - DANIEL ANDREW COURCELLES, TIMOTHY ROBERT SIMPSON, JOHN PAUL DUCHARME-GULLINS and GUARDIAN AMBULANCE (Defendants/ Appellants)
RICHARD LEMMEX, JUNE LEMMEX, JOANNE LEMMEX, STEVEN LEMMEX and ROD LEMMEX (Plaintiffs/Respondents) – and – SUNFLIGHT HOLIDAYS INC. AND PREMIER CRUISES LTD., INC. (Defendants/Respondents) – and – GEORGE F. HUGGINS & Co. (GRENADA) LTD. and GEORGE BERNARD (Third Parties/Appellants)
MICHAEL LEUFKENS, ELAINE LEUFKENS, BRADLEY LEUFKENS, by his Litigation Guardian, Michael Leufkens, and WESLEY LEUFKENS, by his Litigation Guardian Elaine Leufkens (Plaintiffs/Appellants) – and – ALBA TOURS INTERNATIONAL INC., SUNQUEST VACATIONS LIMITED and SWISS TRAVEL SERVICE, a partnership, CANADIAN LEISURE GROUP LTD., THE RED CROSS OF COSTA RICA and CAJA CONSTARRICENSE DEL SEGURO SOCIAL c.o.b. HOSPITAL DR. ENRIQUE BALTODANO, RINCON DE LA VIEJA CABIN and SWISS TRAVEL SERVICE (Defendants/Respondents)
MARION SINCLAIR, CHARLES SINCLAIR and CYNTHIA KAUFMAN (Plaintiffs/appellants) – and – CRACKER BARREL OLD COUNTRY STORE, INC. (Defendant/Respondent)
DANESHWAR GAJRAJ, BIBI KAMROON NESHA GAJRAJ, and TRISHA SHARMELA, a minor, by her Litigation Guardian, DANESHWAR GAJRAJ (Plaintiffs/Appellants)– and – KARLA JO DeBERNARDO, ALLSTATE INSURANCE COMPANY OF CANADA, and RAFEEK MANUSAMI (Defendants/Respondents)
BEFORE:
ROSENBERG, FELDMAN and SHARPE JJ.A.
E N D O R S E M E N T R E C O S T S
[1] We have now received and reviewed the parties' written submissions as to costs in the above noted appeals. In each appeal, the successful party asks for costs on a partial indemnity basis. The unsuccessful parties submit that there should be no costs awarded or, if an award is to be made, that it be for an amount significantly lower than claimed by the successful parties. The amounts claimed are substantial:
Muscutt v. Courcelles Lemmex v. Sunflight Holidays Inc.
Leufkens v. Alba Tours International Inc. Sinclair v. Cracker Barrel Old Country Store Gajraj v. Debernardo
$33,382.83 $41,073.25 (plus $13,986.56 for the motion and $27,366.90 for the application for leave to appeal and appeal to the Divisional Court) $40,186.33 $49,529.54 $17,407.88
[2] These appeals involve plaintiffs who suffered serious personal injuries. We determined that jurisdiction should be declined in four of the five cases, thereby precluding the injured plaintiff's from having their claims determined on the merits in Ontario. These appeals involved a difficult jurisdictional issue upon which there were conflicting authorities and little, if any, guidance from this court. By hearing all five appeals together, we were greatly assisted in the difficult task of elaborating what we considered to be appropriate jurisdictional standards. However, the joint hearing was lengthy and undoubtedly added to the costs of the parties.
[3] Taking all these factors into account, it is our view that we should exercise our discretion to depart from the ordinary rule that costs follow the event.
[4] Accordingly, we order that there be no costs awarded in Lemmex v. Sunflight Holidays Inc., Leufkens v. Alba Tours International Inc., Sinclair v. Cracker Barrel Old Country Store and Gajraj v. Debernardo. In Muscutt v. Courcelles where we held that the courts of Ontario should assume jurisdiction, the appropriate order is that the costs of the appeal be reserved to the trial judge.
"M. Rosenberg J.A."
"K. Feldman J.A."
"Robert J. Sharpe J.A."