COURT OF APPEAL FOR ONTARIO

2016 ONCA 181

DATE: 20160302

DOCKET: C59094

Feldman, Cronk and Huscroft JJ.A.

BETWEEN

Diana Lynn Monk

Plaintiff/Responding Party (Appellant)

and

Farmers’ Mutual Insurance Company (Lindsay) and Muskoka Insurance Brokers Ltd.

Defendants/Moving Parties (Respondents)

David A. Morin, for the appellant

Martin P. Forget, for the respondent Farmers’ Mutual Insurance Company (Lindsay)

Demetrios Yiokaris, for the respondent Muskoka Insurance Brokers Ltd.

Heard: May 6, 2015

Released: December 23, 2015

On appeal from the order of Justice Edward J. Koke of the Superior Court of Justice, dated June 27, 2014, with reasons reported at (2014), 37 C.C.L.I. (5th) 92 (Ont. S.C.).

COSTS ENDORSEMENT

[1] The parties were unable to agree on costs following the court’s decision allowing the appeal in this matter. The appellant seeks costs for the motion and appeal.

The motion

[2] Counsel for the appellant seeks $125,000 in costs for the motion on a partial indemnity basis.

[3] The respondents submit that costs should be left to the motion judge, as there remains a live issue as to whether the claim is time-barred. In the alternative, the appellant should be awarded nothing, or no more than $10,000.

[4] The motion judge wrote lengthy reasons awarding the respondents $50,000 ($30,000 to Farmers and $20,000 to Muskoka) rather than the $141,000 they sought. The motion judge discounted the costs to the respondents because of concerns about access to justice and disproportionality, given the size of the claim.

[5] Those concerns are not relevant here. The appellant is entitled to costs on a partial indemnity basis, which should be fixed at $90,000, inclusive of taxes and disbursements. $55,000 shall be paid by Farmers and $35,000 by Muskoka.

The appeal

[6] Counsel for the appellant seeks $34,000 in costs for the appeal on a partial indemnity basis.

[7] At the hearing, counsel for the appellant stated clearly that, given the novelty of the issue and the importance of access to justice, he was not seeking costs even if he succeeded on the appeal. He maintained this position under questioning from the panel.

[8] Counsel cannot resile from the position maintained at the hearing.

[9] In the circumstances there is no order as to costs on the appeal.

Disposition

[10] Farmers shall pay the appellant $55,000. Muskoka shall pay the appellant $35,000. Both figures are inclusive of taxes and disbursements.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“Grant Huscroft J.A.”