Court of Appeal for Ontario

Date: April 6, 2017 Docket: C61541

Feldman, Epstein and Miller JJ.A.

Between

Jessica Reiter Applicant (Appellant)

and

Tiar Hollub Respondent (Respondent)

Counsel

J. Lester Davies, for the appellant

Elissa C.M. Boyle, for the respondent

Heard

September 30, 2016

On Appeal

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated December 9, 2015, with reasons reported at 2015 ONSC 6397.

Costs Decision

Epstein J.A.:

[1] In this action, the appellant claimed an interest in the $410,000 increase in the equity in the respondent's home during the parties' cohabitation. Prior to trial, the respondent offered to pay the appellant $5,000 in full satisfaction of her claim. The appellant did not accept the offer.

[2] At the conclusion of a three-day trial, the trial judge dismissed the action and awarded the respondent his costs, on a partial indemnity basis, in the amount of $20,211.29.

[3] Prior to the appeal being argued, the appellant offered to settle for $57,747.50, including trial and appeal costs. The respondent did not accept the offer.

[4] This court allowed the appeal in part, awarding the appellant $5,000, plus interest, representing the return of a one-time amount the appellant had given the respondent toward the mortgage on the property.

[5] At the conclusion of the hearing of the appeal, the parties agreed that the successful party should receive partial indemnity costs in the amount of $9,500, inclusive of disbursements and relevant taxes.

[6] In their written submissions as to costs, the parties have differing views as to both who the "successful party" was and the appropriate costs awards of the trial and appeal.

[7] As to the appeal, I would award the respondent his costs. This was primarily a claim for constructive trust. On that issue – the one that consumed most of the argument and that involved the largest monetary part of the appellant's claim – the respondent was successful. In my view, the respondent is therefore entitled to his costs in the agreed-upon amount of $9,500.

[8] As to the trial, in the light of the history of this matter, I see no reason to interfere with the trial judge's award of costs.

Released: April 6, 2017

"Gloria Epstein J.A."

"I agree. K. Feldman J.A."

"I agree. B.W. Miller J.A."