COURT OF APPEAL FOR ONTARIO

CITATION: Beniuk v. Leamington (Municipality), 2020 ONCA 424

DATE: 20200626

DOCKET: C66773

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Angela and Dennis Beniuk

Plaintiffs (Appellants)

and

The Corporation of the Municipality of Leamington

Defendant (Respondent)

Counsel:

Raymond G. Colautti and Eric Florjancic, for the appellants

Tom Serafimovski and Samuel Atkin, for the respondent

Heard: in writing

COSTS ENDORSEMENT

[1] The appellants appealed an order on a summary judgment motion dismissing their claims as statute-barred. At the hearing of the appeal, the parties confirmed agreement to an all-inclusive amount of $8,000 in costs to the successful party. We reserved judgment on the appeal.

[2] There was mixed success in the appeal; the details are set out in our reasons dated March 25, 2020 and reported at 2020 ONCA 238. We ordered costs of the appeal to the respondent in the sum of $6,500 and reduced the respondent’s costs in the court below from $11,850, inclusive of taxes and disbursements to the inclusive amount of $10,000. The order reflected the parties’ mixed success on the appeal.

[3] At the request of the appellants’ counsel we agreed to receive written costs submissions. We have now considered those submissions.

[4] The appellants contend that the appropriate order to reflect the parties’ mixed success is that each side should bear their own costs of the appeal and that the costs of the motion in the court below should be in the cause. The respondent asserts that the order made by this court fairly reflects the fact that, while success was mixed, they were more successful on the appeal, and the appellants achieved limited success.

[5] We agree with the respondent that the costs award already made properly reflects the divided success on the appeal. The appellants were unsuccessful on the two main thrusts of their appeal: on the applicability of the Real Property Limitations Act and on discoverability under s. 5 of the Limitations Act, 2002. As we stated at para. 78 of our reasons the appellants’ claim is “largely statute-barred”. The effect of the appeal is that the appellants are entitled to proceed with their claim, but only as it relates to damages sustained after January 17, 2016.

[6] For these reasons we affirm the award of costs set out in our reasons dated March 25, 2020.

“K. van Rensburg J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”