David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co.
93 O.R. (3d) 257
Court of Appeal for Ontario,
Laskin, Simmons, Cronk, R. P. Armstrong JJ.A.
and Then J. (ad hoc)
October 15, 2008
Civil procedure -- Class proceedings -- Costs -- Plaintiffs commencing class actions against defendant insurers in reliance upon Court of Appeal decision which five-judge panel of Court of Appeal subsequently reversed -- Class actions unsuccessful as result -- Unsuccessful plaintiffs not entitled to costs -- Potentially disastrous financial consequences to plaintiffs' lawyers who took cases on contingency-fee basis not constituting reason for awarding costs to plaintiffs -- Defendants not guilty of any misconduct which would justify award of costs against successful parties -- Actions not falling into category of public interest litigation that would justify costs order under rule 57.01(2) of the Rules of Civil Procedure -- Actions collectively constituting test case -- Appropriate disposition being no costs award -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.01(2).
After the Court of Appeal released its judgment in McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2001), 2001 21203 (ON CA), 54 O.R. (3d) 704, [2001] O.J. No. 2312 (C.A.), a large number of class actions were commenced against insurers in reliance on that decision. In an appeal from a statutory interpretation motion in one of those actions, a five-judge panel of the Court of Appeal reversed McNaughton (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436 (C.A.). As a result, all the class actions were terminated. Despite their lack of success, the plaintiffs asked the court to exercise its discretion under rule 57.01(2) of the Rules of Civil Procedure and award them their costs. They submitted that it was not reasonably foreseeable that the Court of Appeal would reverse its own decision and invoked the exception contained in rule 57.01(2) in part on the basis that their lawyers took the cases on a contingency-fee basis and now had to write-off all the time they spent on the cases, with disastrous financial consequences. [page258]
Held, there should be no costs award.
There was no basis for exercising the court's discretion to award costs to the unsuccessful plaintiffs. The Class Proceedings Act, 1992, S.O. 1992, c. 6 was not intended to insulate representative plaintiffs or class members from the possible costs consequences of unsuccessful litigation. Contingency fees in class actions are premised on the theory that when the plaintiffs are successful, their counsel will be remunerated at a level that exceeds the level of remuneration in the usual non-contingency case. That approach offsets the risk to the plaintiffs' counsel when the plaintiffs are unsuccessful. There was no evidence of any misconduct on the part of the defendants which would justify an award of costs against them. These cases did not fall into a category of public interest litigation that would justify a costs order under rule 57.01(2). While it was not reasonably foreseeable that McNaughton would be overruled, at least at the time the actions were commenced, that did not constitute the kind of exceptional circumstance that would justify the invocation of the court's discretion to make an award of costs in favour of the unsuccessful plaintiffs. The appropriate disposition in the circumstances was a no costs award. Collectively, the cases constituted a test case. Moreover, it is a rare circumstance that the court reverses one of its own decisions within such a short time-frame. In the special circumstances of this case, it would not be fair or reasonable to saddle the plaintiffs with the costs of the statutory interpretation motions and the appeals.
RULING on costs.
Cases referred to David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436, 255 D.L.R. (4th) 633, 199 O.A.C. 266, 23 C.C.L.I. (4th) 191, 15 C.P.C. (6th) 1, [2005] I.L.R. I-4422, 19 M.V.R. (5th) 205, 140 A.C.W.S. (3d) 166 (C.A.); Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 1999 2023 (ON CA), 44 O.R. (3d) 73, [1999] O.J. No. 967, 172 D.L.R. (4th) 43, 118 O.A.C. 291, 134 C.C.C. (3d) 161, 62 C.R.R. (2d) 161, 42 M.V.R. (3d) 1, 42 W.C.B. (2d) 20 (C.A.); McNaughton Automotive Ltd. v. Co- operators General Insurance Co. (2001), 2001 21203 (ON CA), 54 O.R. (3d) 704, [2001] O.J. No. 2312, 200 D.L.R. (4th) 449, 151 O.A.C. 252, 33 C.C.L.I. (3d) 165, 10 C.P.C. (5th) 1, [2001] I.L.R. I-3997, 15 M.V.R. (4th) 179, 106 A.C.W.S. (3d) 331 (C.A.) [Leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 451, 289 N.R. 400]; McNaughton Automotive Ltd. v. Co- operators General Insurance Co. (2005), 76 O.R. (3d) 161, [2005] O.J. No. 2436, 255 D.L.R. (4th) 633, 199 O.A.C. 266, 23 C.C.L.I. (4th) 191, 15 C.P.C. (6th) 1, [2005] I.L.R. I-4422, 19 M.V.R. (5th) 205, 140 A.C.W.S. (3d) 166 (C.A.) [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 388]; McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2003), 66 O.R. (3d) 112, [2003] O.J. No. 2914, [2003] O.T.C. 663, 2 C.C.L.I. (4th) 236, 41 C.P.C. (5th) 162, [2003] I.L.R. I-4217, 49 M.V.R. (4th) 81, 124 A.C.W.S. (3d) 565 (S.C.J.); McNaughton Automotive Ltd. v. Co- operators General Insurance Co. (2005), 2005 1058 (ON SC), 74 O.R. (3d) 216, [2005] O.J. No. 179, [2005] O.T.C. 38, 9 C.P.C. (6th) 186, [2005] I.L.R. I-4378, 136 A.C.W.S. (3d) 420 (S.C.J.); McNaughton Automotive Ltd. v. Co-operators General Insurance Co., [2005] O.J. No. 940, [2005] O.T.C. 38, 137 A.C.W.S. (3d) 690 (S.C.J.); Mcnaughton Automotive Ltd. v. Co-operators General Insurance Co., [2008] O.J. No. 5040, 2008 ONCA 597; Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, [1992] S.C.J. No. 68, 93 D.L.R. (4th) 1, 139 N.R. 1, J.E. 92-1054, 92 CLLC Â14,036 at 12221, 10 C.R.R. (2d) 1, 34 A.C.W.S. (3d) 1090; Smith v. Canadian Tire Acceptance Ltd. (1995), 26 O.R. (3d) 94, [1995] O.J. No. 3380, 40 C.P.C. (3d) 129, 58 A.C.W.S. (3d) 1074 (C.A.), affg (1995), 1995 7163 (ON SC), 22 O.R. (3d) 433, [1995] O.J. No. 327, 36 C.P.C. (3d) 175, 53 A.C.W.S. (3d) 256 (Gen. Div.); Vennell v. Barnardo's (2004), 2004 33357 (ON SC), 73 O.R. (3d) 13, [2004] O.J. No. 4171, [2004] O.T.C. 889, 28 C.P.C. (6th) 185 (S.C.J.); Wismer v. Javelin International Ltd. (1982), 1982 1891 (ON SC), 38 O.R. (2d) 26, [1982] O.J. No. 3385, 136 D.L.R. (3d) 647, 15 A.C.W.S. (2d) 94 (H.C.J.) [page259] Statues referred to Canadian Charter of Rights and Freedoms Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 31(1) Insurance Act, R.S.O. 1990, c. I.8 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 12.02(2), (3), 20, 21, 57.01(2) Statutory Conditions -- Automobile Insurance, O. Reg. 777/93, s. 6(7)
John A. Campion, Paul J. Martin and Annie M.K. Finn, for appellant The Dominion of Canada General Insurance Co. Paul J. Martin and Annie M.K. Finn, for appellants Belair Insurance Company Inc., ING Halifax Insurance Company and Wawanesa Mutual Insurance Company. Alan L.W. D'Silva, Bradley M. Davis and Emily J. Smith, for appellants The Economical Insurance Group, Federation Insurance Company of Canada and Liberty Mutual Insurance Company. Howard Borlack and Lisa La Horey, for appellant Zurich Canada. Michael McGowan and Gabrielle Pop-Lazic, for respondents David Polowin Real Estate Ltd., Laurier Duclos, Sandy Big Canoe, Boyd Johnston, Robert Woods, Sharon Farquhar and A. Gordon Shaw. Russell M. Raikes, for intervenor The Law Foundation of Ontario.
The judgment of the court was delivered by
ARMSTRONG J.A.: -- Introduction
[1] These are the reasons for decision in respect of the costs in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436 (C.A.) and seven related appeals. [See Note 1 below]
[2] In June 2001, this court released its judgment in McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2001), 2001 21203 (ON CA), 54 O.R. (3d) 704, [2001] O.J. No. 2312 (C.A.). The Supreme Court of Canada subsequently refused leave to appeal, [2001] S.C.C.A. No. 451, 289 N.R. 400. In McNaughton, this court decided that the practice of automobile insurers to charge a deductible on total [page259] loss claims -- where the insurer took the title to the salvage -- constituted a breach of statutory condition 6(7) in O. Reg. 777/93 under the Insurance Act, R.S.O. 1990, c. I.8. The McNaughton judgment was the catalyst for the commencement of class actions in 35 different cases, which included as defendants the appellants in this proceeding (the "insurers").
[3] Justice Roland J. Haines of the Superior Court of Justice (the "motions judge") was designated as the case management judge for all 35 actions. The insurers brought several preliminary motions under Rules 20 and 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A number of these motions revisited the issue of the proper interpretation of statutory condition 6(7) based on an expansive evidentiary record that had not previously been before the court and on the basis that McNaughton was wrongly decided by this court.
[4] In his reasons dated July 14, 2003 [(2003), 66 O.R. (3d) 112, [2003] O.J. No. 2914 (S.C.J.)], the motions judge dismissed the statutory interpretation motions on the basis that he was bound to follow this court's decision in McNaughton. He said [at para. 147]:
The question is whether this court can decline to follow that conclusion on the basis of the expanded evidentiary record and the absence of any reference to s. 261 of the Insurance Act in the decision of the Court of Appeal. It may be open to the Court of Appeal to reconsider its decision in McNaughton on these grounds but in my opinion, I am bound by that decision[.] Accordingly, in reasons dated January 19, 2005 [(2005), 2005 1058 (ON SC), 74 O.R. (3d) 216, [2005] O.J. No. 179 (S.C.J.)] and March 9, 2005 [[2005] O.J. No. 940, [2005] O.T.C. 38 (S.C.J.)], the motions judge granted partial indemnity costs to the respondents ("plaintiffs"), in an amount to be fixed later.
[5] Eventually, a five-judge panel of this court considered the appeal of The Dominion of Canada General Insurance Co. and the appeals of the other seven insurers from the decisions of the motions judge on the statutory interpretation issue. All the appeals on this issue were heard together. On June 15, 2005 [(2005), 2005 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436 (C.A.)], the court reversed its earlier decision in McNaughton and held that statutory condition 6(7) did not prohibit the application of the policy deductible in total loss cases. Each of the eight representative plaintiffs sought leave to appeal to the Supreme Court of Canada. On January 26, 2006, the Supreme Court dismissed all the leave to appeal applications [[2005] S.C.C.A. No. 388]. As a result, all the class actions have since terminated.
[6] In its reasons granting the insurers' appeals, this court invited the parties to make written submissions on the costs of [page261] the motions and the appeals. The court reserved its decision on costs until it disposed of several motions for leave to appeal brought by the representative plaintiffs from certain costs orders of the motions judge made in respect of other motions brought by the insurers under Rules 20 and 21. On August 29, 2008, this court dismissed those motions for leave to appeal and, accordingly, we are now in a position to deliver these decisions on costs. Costs Submissions
[7] The written submissions received from the parties are comprehensive, exceeding 200 pages in total. It is neither necessary nor practical to summarize those submissions in detail. What follows is a general summary of the positions taken by the parties. (i) The plaintiffs
[8] Although unsuccessful, the plaintiffs ask this court to exercise its discretion under rule 57.01(2) of the Rules of Civil Procedure [See Note 2 below] and award the plaintiffs their costs on a substantial indemnity scale or, in the alternative, on a partial indemnity scale.
[9] The plaintiffs submit that although their lawyers took their cases on a contingency-fee basis, they did so in reliance upon the court's decision in McNaughton. It was not reasonably foreseeable that the court would reverse its own decision as it did in Polowin.
[10] They invoke the exception contained in rule 57.01(2) in part on the basis that the law firms representing the plaintiffs are small firms which now must write-off all the time they have spent on these cases resulting in "disastrous" financial consequences.
[11] The plaintiffs further submit that these cases are consumer protection cases involving a matter of public interest. It is important to encourage plaintiffs' lawyers to take on these sorts of cases so that consumers receive access to justice.
[12] The plaintiffs also submit that the insurance industry failed to draft an insurance policy with examples illustrating what happens to the salvage in a total loss case. If they had done so, these actions would not have been necessary.
[13] Finally, the plaintiffs argue that the insurers received a windfall when, in 2003, the Ontario legislature amended the [page262] statutory conditions to permit an insurer to charge the deductible in a total loss case part way through a policy year -- effective immediately rather than on the renewal of the policy -- allegedly because the premium charges took account of this court's decision in McNaughton. (ii) The insurers
[14] Dominion of Canada, Belair, ING Halifax, Wawanesa and Economical seek partial indemnity costs on the statutory interpretation motions and the appeals. They also seek costs of the actions against each of them on a partial indemnity scale in an amount to be determined by the motions judge. Finally, as part of its claim for costs of the appeal, Dominion of Canada seeks partial indemnity costs for a fresh evidence motion.
[15] In respect of Liberty Mutual and Federation, the statutory interpretation issue was raised by way of cross- appeal. Thus, they seek only the costs of their successful cross-appeals on a partial indemnity scale.
[16] Zurich seeks only the costs of its appeal on a partial indemnity scale since it did not actively participate in the statutory interpretation motion before the motions judge. Instead, it relied on the position advanced by the other insurers. Since the motions judge made an order for partial indemnity costs against Zurich, it simply asks that the order be set aside.
[17] The insurers, in general, submit that costs should follow the event because there are no special circumstances justifying a deviation from the usual rule. They further submit that none of the factors set out in s. 31(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "CPA") apply to these cases. For instance, none of the cases was a test case, raised a novel point of law or involved a matter of public interest. While the McNaughton case may have been a test case -- these cases are not test cases. These cases involve no more than a routine commercial dispute between the insurers and the policy holders.
[18] The insurers also rely upon the following statement of Winkler J. in Smith v. Canadian Tire Acceptance Ltd. (1995), 1995 7163 (ON SC), 22 O.R. (3d) 433, [1995] O.J. No. 327 (Gen. Div.), at p. 449 O.R., affd (1995), 1995 3152 (ON CA), 26 O.R. (3d) 94, [1995] O.J. No. 3380 (C.A.):
The Class Proceedings Act, 1992 was never intended to insulate representative plaintiffs, or class members, from the possible costs consequences of unsuccessful litigation. The goal of the Act is not to encourage the promotion of litigation. Rather, it is designed to provide a procedure whereby the courts will be more readily accessible to groups of plaintiffs. [page263]
[19] The insurers raise a number of other factors in support of their request for costs, including: (a) The plaintiffs' actions could not be said to raise an issue of public interest because, had they succeeded, insurance rates would have increased substantially, which would have had a detrimental effect on a greater number of members of the public. (b) While the amount claimed by any class member on an individual basis was low, the total claims against the insurers were huge. (c) The motions judge awarded the successful plaintiffs their costs of the statutory interpretation motions. On appeal, this court, in reversing the motions judge, ought similarly to award costs to the successful insurers. 00,,04,00(d) The representative plaintiffs brought these actions of significant breadth and complexity and the plaintiffs must or should have expected that the costs of defending these actions may be substantial. (e) In respect of Liberty Mutual and Federation, it was clear prior to the commencement of the actions against them that the proposed representative plaintiffs were out of time to make their claims. In an attempt to keep the actions alive, the representative plaintiffs advanced unsubstantiated allegations of fraud in an effort to delay the running of the limitation period. (f) The class definition originally proposed by the plaintiffs was unreasonably broad, including all policy holders back to 1975, and policy holders in a large geographical area beyond the borders of Ontario, despite their tenuous connection to Ontario. (iii) The Law Foundation of Ontario
[20] The Law Foundation administers the Class Proceedings Fund. The Fund provided financial support to the plaintiffs in these appeals and in the cases before the motions judge. Thus, the Law Foundation is a party to these appeals in relation to the issue of costs pursuant to rules 12.04(2) and (3) of the Rules of Civil Procedure.
[21] The Law Foundation submits that there should be no order as to the costs of the appeals. In respect of the statutory interpretation motions, however, the Law Foundation seeks an [page264] order upholding the motions judge's awards of costs to the plaintiffs on a partial indemnity scale.
[22] In support of its position that there ought to be no costs of the appeals, the Law Foundation relies upon s. 31(1) of the CPA. The Law Foundation asserts that the issues before the motions judge and this court constituted a test case, raised a novel point of law and involved a matter of public interest.
[23] The Law Foundation relies upon Vennell v. Barnardo's (2004), 2004 33357 (ON SC), 73 O.R. (3d) 13, [2004] O.J. No. 4171 (S.C.J.), at para. 25, where Cullity J. said:
A test case, as I understand it, ordinarily refers to a proceeding that will determine the issues that will arise in other cases that are pending or, at least, contemplated.
[24] In addition to the consideration of the factors under s. 31(1) of the CPA, the Law Foundation asserts that the complexity of the Insurance Act and its regulations; the difficulty in interpreting statutory condition 6(7); and the fact that this court and the parties were faced with a previous decision of this court on exactly the same point militate in favour of an award of no costs.
[25] In respect of the statutory interpretation motions, the Law Foundation submits that this court concluded that the motions judge's ruling, based upon stare decisis, was appropriate. That said, it follows that the costs order that followed the ruling should stand. In the alternative, the Law Foundation asserts that the appropriate order is "an award of no costs".
[26] Finally, the Law Foundation asserts that there should be no award of costs in respect of each of the actions since all the s. 31(1) CPA factors are engaged by these cases.
[27] There are other issues raised by the Law Foundation relating to both scale and quantum of costs. In the view I take of this matter, it is not necessary to deal with either scale or quantum. Analysis
[28] I see no basis for exercising the court's discretion to award costs to the unsuccessful plaintiffs.
[29] The plaintiffs assert that, absent an award of costs in their favour, the law firms representing them will suffer disastrous financial consequences because they will have to write-off all the time that they have spent on these cases. In my view, this submission is contrary to the aforementioned statement of Winkler J. in Smith v. Canadian Tire Acceptance Ltd., supra, that [at para. 59] "[t]he Class Proceedings Act, 1992 was never intended to insulate representative plaintiffs or class members, from the possible costs consequences of unsuccessful litigation". [page265]
[30] In cases such as these, one needs to consider the issue of costs in the context of the nature of contingency fees. Contingency fees in class actions are premised on the theory that when the plaintiffs are successful, their counsel will be remunerated at a level that exceeds the level of remuneration in the usual non-contingency case. This approach offsets the risk to the plaintiffs' counsel when the plaintiffs are unsuccessful.
[31] I agree with counsel for Wawanesa and ING Halifax that there is an entrepreneurial element to this litigation. This is evident in the plaintiffs' attempt to broaden the class definition to include all policy holders back to 1975 and policy holders in a large geographical area beyond the borders of Ontario. It is obvious that if the plaintiffs had succeeded in these efforts, and ultimately in the cases at trial, the rewards for the lawyers would have been more than handsome. While there is nothing inherently wrong with lawyers adopting an approach that will provide generous costs awards in terms of premiums and multipliers, such an approach has its economic risks that must be apparent to the lawyers who take such risks.
[32] Courts will generally exercise their discretion to award costs against a successful party only in exceptional cases. Exceptional cases may include misconduct on the part of the successful party: see Wismer v. Javelin International Ltd. (1982), 1982 1891 (ON SC), 38 O.R. (2d) 26, [1982] O.J. No. 3385 (H.C.J.), at p. 34 O.R. Courts have also exercised this discretion in significant public interest cases such as Canadian Charter of Rights and Freedoms cases: see Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, [1992] S.C.J. No. 68, at p. 726 S.C.R. and Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 1999 2023 (ON CA), 44 O.R. (3d) 73, [1999] O.J. No. 967 (C.A.), at p. 9 O.R.
[33] In the instant case and the related appeals, although misconduct was alleged in some of the statements of claim against the insurers, none was proven. The submission by the plaintiffs that the insurers failed to draft an insurance policy in plain language which included realistic examples does not constitute misconduct. In any event, there is no evidence that these insurers were responsible for the language of the policy which was required to be used by all insurers in Ontario.
[34] The plaintiffs also allege that the insurers received a windfall when in 2003 the Ontario government amended the statutory conditions part way through the policy year and effective immediately (not on renewal of the policy). There is no evidence before us to support this allegation.
[35] In short, there is simply no evidence of any conduct on the part of the insurers that would warrant an order for costs against them. [page266]
[36] Also, I am not persuaded that these cases fall into a category of public interest litigation that would justify a costs order under rule 57.01(2).
[37] I agree with the submission of the plaintiffs that it was not reasonably foreseeable that McNaughton would be overruled, at least at the time when these actions were commenced. However, in this case, this does not constitute the kind of exceptional circumstance that would justify the invocation of this court's discretion to make an award of costs in favour of the unsuccessful plaintiffs. Even though it was not reasonably foreseeable that McNaughton would be overruled, it nonetheless was a risk the plaintiffs had to bear when they started their litigation.
[38] The next question is whether there should be a costs award in favour of the insurers pursuant to the usual rule on costs. While counsel for the insurers make a number of compelling points in support of such an award, I am not persuaded that the normal rule should be applied in the unusual circumstances of this case. In my view, the appropriate disposition is a no costs award. I come to this conclusion for three reasons.
[39] First, these cases collectively constitute a test case. Adopting the definition of Cullity J. in Vennell that a test case refers to a proceeding that will determine the issues that will arise in other cases, it is difficult to avoid the conclusion that these cases constitute test cases. The decision of this court has had the effect of disposing of all of the 35 class actions.
[40] Second, given the particular circumstances of these cases, the fair and reasonable result is a no costs order. While not unique, it is a rare circumstance that this court reverses one of its own decisions. This is particularly so when the reversal takes place within such a short time-frame.
[41] Third, the plaintiffs, armed with this court's decision in McNaughton, proceeded with these actions in the reasonable expectation that they were on firm ground in doing so. While one can be critical of the plaintiffs' "pushing the envelope" in respect of the class definition and in respect of the allegations concerning fraudulent conduct, in most instances they have already had costs orders made against them in those matters and leave to appeal from those orders has been dismissed: see McNaughton Automotive Ltd. v. Co-operators General Insurance Company, [2008] O.J. No. 5040, 2008 ONCA 597 released by this court on August 29, 2008. The real issue here is whether the plaintiffs should bear the costs of the insurers in respect of the statutory interpretation motions and the appeals. In my view, in the special circumstances of this case, it would not be fair or reasonable to saddle the plaintiffs with such further costs. [page267] Disposition
[42] For the above reasons, I would make the following orders: (i) In respect of The Dominion of Canada, Belair, ING Halifax, Wawanesa and Economical, there shall be no costs of the statutory interpretation motions, the appeals and the actions. There shall be no costs of The Dominion of Canada's fresh evidence motion. (ii) In respect of Liberty Mutual and Federation, there shall be no costs of their successful cross-appeals. (iii) In respect of Zurich, there shall be no costs of its appeal and no costs of the statutory interpretation motion. (iv) The request for costs by the plaintiffs is denied. (v) The request of the Law Foundation that the costs awards against the insurers on the statutory interpretation motions should stand is denied, and such awards are hereby set aside.
Order accordingly. APPENDIX A David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. Big Canoe v. The Economical Insurance Group Duclos v. Wawanesa Mutual Insurance Co. Farquhar v. Liberty Mutual Insurance Co. Johnston v. Federation Insurance Co. of Canada Matthews v. Belair Insurance Co. Shaw v. Zurich Canada Insurance Woods v. ING Halifax Insurance Co. [page268]
Notes
Note 1: See Appendix A for the complete list.
Note 2: Rule 57.01(2) provides: The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case.