COURT OF APPEAL FOR ONTARIO
DATE: 2003-06-19
DOCKET: C37898
RE: TRANSCANADA PIPELINES LIMITED (Plaintiff (Respondent)) – and – POTTER STATION POWER LIMITED PARTNERSHIP (Defendant (Respondent)) – and – THE ROYAL INSURANCE COMPANY OF CANADA LIMITED AND COMMONWEALTH INSURANCE COMPANY OF CANADA LIMITED (Third Parties (Commonwealth Appellant and Royal Respondent))
BEFORE: MACPHERSON, SIMMONS AND CRONK JJ.A.
COUNSEL: Warren H.O. Mueller, Q.C. For the appellant Commonwealth Insurance Company of Canada
Richard H. Krempulec, Q.C. For the respondent TransCanada Pipelines Limited
Robert Kennaley For the respondent Potter Station Power Limited Partnership
Mark M. O’Donnell For the respondent Royal & Sun Alliance Insurance Company of Canada
HEARD: October 25, 2002
C O S T S E N D O R S E M E N T
[1] The motion judge dismissed Commonwealth’s summary judgment motion requesting that Potter Power’s third party claim for indemnity under an insurance policy and Royal’s crossclaim be dismissed, therefore leaving the insurance coverage issue to be determined at trial. In addition, the motion judge ordered that Commonwealth provide Potter Power with a defence to the main action.
[2] We dismissed Commonwealth’s appeal from the motion judge’s order with costs.
[3] Even though we upheld the motion judge’s order that Commonwealth provide Potter Power with a defence to the main action, in our view, this is not a case for costs on a substantial indemnity basis. The significant issue on appeal was whether Commonwealth’s policy provides coverage for the claim asserted in the main action. That issue remains to be determined at trial. In these circumstances, an award of costs on a partial indemnity basis is appropriate.
[4] Given the nature of the appeal and the amounts in issue, Potter Power’s costs of the appeal are fixed at $11,500 inclusive of disbursements and G.S.T. and Royal’s costs of the appeal are fixed at $10,000 inclusive of disbursements and G.S.T.
“J. C. MacPherson J.A.”
_ “Janet Simmons J.A.”
“E.A.. Cronk J.A.”