



COURT OF APPEAL FOR ONTARIO

CITATION: Nemchin v. Green, 2021 ONCA 342

DATE: 20210519

DOCKET: C67869

Roberts, Trotter and Thorburn
    JJ.A.

BETWEEN

Tatiana Nemchin

Plaintiff (Appellant)

and

Yvonne Green

Defendant
    (Respondent)

Joseph Y. Obagi and Elizabeth A.
    Quigley, for the appellant

Stephen G. Ross, Thomas Macmillan and
    Meryl Rodrigues, for the respondent

Heard: October 27, 2020 by
    video conference

On appeal
    from the order of Justice Sylvia Corthorn of the Superior Court of Justice,
    dated October 28, 2019, with reasons reported at 2019 ONSC 6243.

COSTS ENDORSEMENT

[1]

On April 16, 2021 we allowed
    the appeal and amended various paragraphs of the trial judges October 28, 2019
    order. The trial judge had ordered the appellant to pay to the respondent an
    additional amount to top up the appellants assigned benefits under the Sun
    Life income continuation plan to account for Sun Lifes deduction of income
    taxes at source. We set aside that portion of the order and required the
    respondent to reimburse the appellant for any top up amounts paid by the
    appellant pursuant to the order. We granted the appellant her partial indemnity
    costs in the agreed upon amount of $30,000.

[2]

We invited the parties to
    make further written submissions about the costs of the motion before the trial
    judge if they could not agree on their disposition in the light of our
    decision. They could not and we have reviewed their costs submissions.

[3]

In her March 3, 2020
    endorsement, reported as
Nemchin v. Green
, 2020 ONSC 1375, the trial
    judge disposed of the costs related to two motions: she awarded the respondent
    costs for its successful assignment and prejudgment interest motion but concluded
    that there should be no order with respect to costs for the second motion
    dealing with various aspects of the treatment of the Sun Life benefits which
    culminated in her October 28, 2019 top up order (the top up motion). The
    trial judge was of the view that both parties were responsible for the lack of
    agreement reached with respect to the terms of the assignment of the
    appellants rights under the Sun Life plan.

[4]

The appellant seeks costs
    related to the top up motion. The respondent says there should be no costs. In
    the event that we award costs to the appellant, the parties have agreed that
    costs should be in the amount of $10,000.

[5]

We agree that the appellant
    is entitled to costs.

[6]

While, as the respondent
    points out, the parties respective submissions were developed somewhat
    differently on appeal, this was understandable in the circumstances as the
    parties had to respond to the trial judges unanticipated top up order. As the
    trial judge noted, the terms of her order differ from the specific terms
    proposed by counsel for the parties during submissions.

[7]

The tax treatment of the
    assigned benefits proved a stumbling block for the parties agreement on the
    terms of the assignment. Had the parties sought an advance ruling from the CRA
    on the tax treatment of the benefits, as suggested by the appellant, the tax treatment
    issue could have been ascertained and an agreement more likely achieved. The
    top up motion could have been avoided or, at the very least, could have
    proceeded on a more certain factual footing. Instead, both the top up motion
    and the resulting appeal were argued without a concrete understanding of the
    tax consequences of the assignment from the CRAs perspective.

[8]

Moreover, as we noted in
    paragraph 41 of our reasons disposing of the appeal, the appellant should be
    relieved of the financial burden related to the implementation of the assignment
    of her rights under the Sun Life plan for the period of the assignment. As a
    result, she is entitled to her costs of the motion to deal with the mechanical
    aspects of the assignment.

[9]

Accordingly, the respondent
    shall pay to the appellant the agreed upon amount of $10,000 for her costs in
    relation to the top up motion.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.

J.A.
    Thorburn J.A.


