



COURT OF APPEAL FOR ONTARIO

CITATION: Le Treport Wedding &
    Convention Centre Ltd. v. Co-operators General Insurance Company, 2020 ONCA 556

DATE: 20200903

DOCKET: C67088

Feldman, Lauwers and Huscroft
    JJ.A.

BETWEEN

Le Treport Wedding &
    Convention Centre Ltd.

Plaintiff (Appellant)

and

Co-operators General Insurance
    Company

Defendant
    (Respondent)

Emily Stock and Brandon Cook, for the
    appellant

Robert W. Dowhan and Matthew J.
    McMahon, for the respondent

Heard: in writing

On appeal from the judgment of Justice Douglas K. Gray of the
    Superior Court of Justice, dated May 17, 2019, with reasons reported at 2019
    ONSC 3041 and from the costs order, dated June 18, 2019, with reasons at 2019
    ONSC 3779.

COSTS ENDORSEMENT

[1]

We allowed the appeal in part and granted
    judgment to Le Treport Wedding & Convention Centre Ltd. in the amount of
    $429,329.18, with costs and disbursements on the appeal, for the reasons
    reported at 2020 ONCA 487. We invited the parties to make written submissions
    on the trial costs if they were unable to agree.

[2]

Both parties had trial bills of costs in the amount
    of about $100,000 apart from the appellants additional costs for its business
    loss expert.

[3]

In his costs endorsement of June 18, 2019, the
    trial judge awarded the respondent, Co-operators General Insurance Company,
    costs on a partial indemnity basis, but reduced the total award to $75,000 to
    account for Co-operators unreasonable delay in paying out the balance it owed
    to the appellant under a Sewer Back Up Endorsement included in the all-risks policy
    at issue in this case.

[4]

In light of its success on appeal, Le Treport
    requests its trial costs in the amount of $100,000 all-inclusive. While the
    trial judge did not expressly state the amount of the discount he applied to
    Co-operators costs, counsel for Le Treport infers, and we agree, that it was
    in the range of $25,000. In Le Treports submission, this $25,000 discount
    should be added back to the total figure to be awarded.

[5]

Le Treport also notes that it made an offer to
    settle the action for $900,000 on March 8, 2017. It argues that its combined
    award of $813,313.87, comprised of judgment damages and the late Sewer Back Up
    payment, is likely greater than the settlement offer if costs and interest
    are taken into account.

[6]

For its part, Co-operators requests 100 percent
    of its costs at trial or, in the alternative, a 25 percent reduction to the
    costs awarded by the trial judge in recognition of the appellants success on
    one out of the four issues on appeal. Counsel for Co-operators argues that the
    appellant aggressively pursued claims for extracontractual damages, bad faith,
    and punitive damages, refusing to narrow the issues for trial. Co-operators
    also notes that the appellant was ultimately awarded less than one fifth of the
    total amount claimed in the action.

[7]

With respect to the March 8 settlement offer, counsel
    for Co-operators states that Le Treport was only awarded damages of $429,329.18,
    or approximately half of its offer to settle. Despite Co-operators very late
    payment of the Sewer Back Up indemnity, Co-operators asserts that its amount should
    not be counted for the purposes of any analysis under r. 49 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194. Counsel for Co-operators also
    argues that the March 8 settlement offer was made before Le Treport issued its Fresh
    as Amended Statement of Claim on May 5, 2017, which significantly increased the
    scope of the action and the damages sought.

[8]

We agree with the appellant that costs should follow
    the event. In this case, Le Treport was required to initiate proceedings in
    order to recover funds to which it was entitled under the policy. Le Treport
    succeeded on appeal and should have succeeded at trial. It should have its trial
    costs.

[9]

While Le Treports success was limited to one
    out of four issues on appeal, this is not a case of mixed success as between,
    for example, a claimant and cross-claimant. It is not appropriate to award trial
    costs in proportion to the number of issues on which the appellant succeeded or
    failed on appeal.

[10]

In coming to this conclusion, we do not apply r.
    49. The trial judge does not appear to have considered the consequences of the
    settlement offer and it is not clear whether the issue was before him. In any
    event, r. 49 is of limited usefulness at this stage. As noted, both parties claimed
    trial costs in the amount of about $100,000. There is no basis for discounting
    the award of costs to the appellant.

[11]

For these reasons, we set aside the costs order
    of the trial judge and fix costs in favour of the appellant at $100,000 all-inclusive
    payable forthwith.

K.
    Feldman J.A.

P.
    Lauwers J.A.

Grant
    Huscroft J.A.


