Court File and Parties

CITATION: Stewart v. TD General Insurance Company, 2014 ONSC 3680

DIVISIONAL COURT FILE NO.: 13/454

DATE: 20140805

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Darren Stewart and Vanessa Miller, Plaintiffs/Appellants in Appeal

AND:

TD General Insurance Company, Defendant/Respondent in Appeal

BEFORE: Matlow, Aston, Donohue, JJ.

COUNSEL: Keith R. Millikin, for the Appellants

Dwain C. Burns and Cynthia Jones, for the Respondent

HEARD: October 3, 2013 in Hamilton

ENDORSEMENT AS TO COSTS

[1] In two separate but identical actions relating to two separate losses, the plaintiffs claimed indemnification under their home owners’ insurance policy for a loss due to the theft of marijuana plants which had been growing in their back yard. They ultimately quantified the losses at $46,030. The defendant insurer successfully moved to have the actions dismissed on the basis that the policy did not afford coverage, except for $11,000 under an extension of coverage for landscaping, which it had paid.

[2] The plaintiffs unsuccessfully appealed to this Court. We accepted the appellants’ submission that the motions judge erred in his reasons but sustained the outcome on other grounds.

[3] Although the legal issues raised were novel, the respondent was entirely successful in the result. Moreover, it acted reasonably in paying the plaintiffs $11,000 in the first instance to avoid the cost of litigation.

[4] The respondent is entitled to partial indemnity costs, the quantification of which should be tempered by the fact there was no guiding precedent.

[5] There were no contested facts. In this court, the parties addressed the same legal arguments made in the court below so the preparation time was relatively modest. This court did ask for additional written submissions on a supplementary point of law not covered by the factums filed on the appeal or in the issues argued in the court below.

[6] The respondent’s Bill of Costs particularizes items amounting to just over $15,000 exclusive of the time in court for oral argument. The respondent requests that its costs be fixed at $12,333 inclusive of HST and disbursements. Those costs include very substantial hours for junior counsel leading up to the hearing of the appeal and on the additional research and costs submissions. In the circumstances, only a modest allowance should be made for junior counsel.

[7] The appellants are to pay costs fixed at $6,000 inclusive of HST and disbursements.

Aston J.

Matlow J.

Donohue J.

Date: August 5, 2014