Court of Appeal for Ontario

Citation: Carrigan v. Carrigan Estate, 2013 ONCA 96

Date: 2013-02-14

Docket: C53306

Before: Juriansz, LaForme and Epstein JJ.A.

Between:

Mary Melodee Dianne Carrigan Plaintiff (Appellant)

and

Melodee Carrigan, in her capacity as Executrix and Trustee of the Estate of Ronald Leo Anthony Carrigan, deceased, William Smith, alternate Executor and Trustee of the Estate of Ronald Leo Anthony Carrigan, deceased and Jennifer Margaret Quinn Defendants (Respondent)

Counsel:

Rodney Godard and David Ableser, for the appellant

R.G. Colautti and Kathleen Montello, for the respondent Jennifer Margaret Quinn

Heard: April 16, 2012

On appeal from the judgment of Justice Mary J. Nolan of the Superior Court of Justice, dated January 24, 2011, with reasons reported at 2011 ONSC 585.

COSTS ENDORSEMENT

[1] In its decision, the court fixed the costs of the appeal and set aside the trial judge’s disposition of costs. The court left it to the parties to attempt to agree on costs of the trial, and failing agreement, to file written submissions regarding those costs.

[2] The appellant submits that she made an offer to settle the litigation on December 3, 2010 and, consequently, is entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

[3] The respondent takes the position it is premature to deal with trial costs. The respondent points out that this court, in an Addendum to its reasons, remitted the respondent’s application under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) to the Superior Court to be determined. The trial judge had found it unnecessary to deal with the respondent’s entitlement to support under the SLRA. The respondent submits that until her SLRA application is determined, the final outcome of the trial will not be known, and consequently it is not as yet possible to say whether the appellant achieved a result a trial that is better than her offer of settlement, if it complies with the rules.

[4] We agree. The question of all costs of the entire proceeding in the Superior Court is remitted to the judge who hears the respondent’s SLRA application. If, for whatever reason, that application does not proceed, the appellant may renew her request for trial costs to this court.

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”

“Gloria J. Epstein J.A.”