Costs Decision

Citation: MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONSC 1068

Court File No.: CV-14-496950

Date: 20150217

Superior Court of Justice - Ontario

Re: PAUL MACDONALD and STEFANIE MACDONALD,

Plaintiffs

-AND-

CHICAGO TITLE INSURANCE COMPANY OF CANADA,

Defendants

Before: J. Macdonald, J.

Counsel: Gavin J. Tighe, for the Applicants

Robert Dowhan, for the Respondent

COSTS DECISION

[1] I have granted summary judgment dismissing the plaintiffs' action in its entirety. The defendant seeks the costs of both the motion and the action.

[2] The plaintiffs submit that the defendant should not be awarded costs on the basis of the personal hardship which the plaintiffs and their children have encountered as a result of this uninsured loss to their family home, and also because no Canadian court had considered the title insurance coverages in issue before this case was argued.

[3] I accept the defendant's submission that costs generally follow the result. However, that is not an invariable rule. Costs awards are discretionary. That discretion may be exercised on a number of bases.

[4] While I accept that the plaintiffs' circumstances are unfortunate and that they create a substantial burden for a young family, that is not an appropriate basis on which to deny costs to the defendant insurer, whose conduct first in reviewing the claim was entirely appropriate and second in denying it was entirely justified.

[5] The plaintiffs are substantially correct that no Canadian court previously has considered the title insurance coverages which were in issue in this case. While the Queen's Bench for Saskatchewan has ruled on one aspect of the several insured risks upon which these plaintiffs relied, it is substantially correct that this was a case of first impression. On that basis, I exercise my discretion not to award to the defendant either the costs of the motion or of the action.

[6] Judgment shall issue accordingly.

Mr. Justice John Macdonald

Date: February 2 , 2015