



COURT OF APPEAL FOR ONTARIO

CITATION:
Bruinsma v. Cresswell, 2013
    ONCA 111

DATE: 20130222

DOCKET: C55974

Laskin, LaForme and Hoy JJ.A.

BETWEEN

Shane Bruinsma

Plaintiff

and

Kyle Cresswell
, Ronald Cresswell and
CAA Insurance Company (Ontario)

Defendants (
Appellant
) (
Respondent
)

Jonathon A. Schwartzman and James Tausendfreund, for the
    appellant, CAA Insurance Company (Ontario)

Jennifer Chapman, for the respondent, Kyle Cresswell

Heard: January 8, 2013

On appeal from the order of Justice Thomas A. Heeney of
    the Superior Court of Justice, dated August 1, 2012, with reasons reported at 2012
    ONSC 4440, 112 O.R. (3d) 252.

Hoy J.A.:

I.

OVERVIEW

[1]

The plaintiff and the defendant Kyle Cresswell (Cresswell) were
    involved in an automobile accident.  Cresswell was
    driving an uninsured vehicle.

[2]

Ontario requires that all auto insurance policies provide uninsured automobile
    coverage. Therefore, in the normal course, the plaintiffs insurance company 
    the defendant CAA Insurance Company (Ontario) (CAA)  would be liable to
    cover any amount that Cresswell is found to owe the plaintiff, up to policy
    limits.  The plaintiff, however, breached the policy by knowingly driving with
    a suspended drivers licence and CAA denied coverage as a result

[3]

The Motor Vehicle Accident Claim Fund (the Fund), Ontarios
    government-operated insurer of last resort, provides compensation to persons
    injured in an automobile accident where there is no other insurance that would
    cover the claim.  The Minister of Finance, which administers the Fund, brought
    a cross-claim against CAA on behalf of Cresswell, seeking a declaration that
    the plaintiff was entitled to coverage despite his breach of the policy. The cross-claim
    was filed more than two years after Cresswell had been served with the
    plaintiffs Statement of Claim.

[4]

This appeal raises two issues.

[5]

The first is whether the insured plaintiffs admitted breach of the
    policy  knowingly driving with a suspended drivers licence  disentitles him
    to uninsured automobile coverage under the policy.  I conclude that it does
    not.

[6]

The second issue is whether the Ministers cross-claim is time-barred by
    virtue of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched B. I
    conclude that the
Limitations Act
applies and therefore the Ministers
    cross-claim is out of time.  However, for the reasons below, I would not give
    effect to the limitation period argument at this time.

[7]

In the result, I would dismiss this appeal.

II.

THE BACKGROUND

[8]

The action arose out of a motor vehicle accident on November 11, 2006.  The
    plaintiff, Shane Bruinsma, drove a vehicle owned and insured by his girlfriend.

[9]

The plaintiffs drivers licence had been suspended as the result of a
    conviction under the
Criminal Code
for driving with more than the
    prescribed limit of alcohol in his blood.  While suspended, he was convicted
    for driving while disqualified, and his suspension was extended.  As a result
    of the suspensions, the plaintiff was unable to obtain insurance for his
    vehicle.

[10]

Subject
    to specified exceptions, a vehicle owners standard automobile insurance policy
    covers persons, in addition to the owner, who use or operate the owners
    vehicle.  The plaintiff accordingly transferred his vehicle to his girlfriend
    for no consideration, and she proceeded to obtain the policy at issue with CAA.
     On the day of the accident, the plaintiffs girlfriend gave him the only set
    of keys to the vehicle, knowing that the plaintiff was disqualified from
    driving.

[11]

The
    plaintiff alleges he suffered injuries as a result of Cresswells negligence.  On
    December 4, 2008, the plaintiff sued Cresswell; the uninsured vehicles owner,
    Ronald Cresswell; and CAA.  In its Statement of Defence and Cross-claim, dated
    May 7, 2009, CAA asserted that the plaintiff was not entitled to coverage because
    he breached the policy by driving without a valid licence.  CAA also cross-claimed
    against Cresswell and Ronald Cresswell.

[12]

On
    May 26, 2011, the Minister brought its cross-claim.

[13]

CAA
    then brought a motion for summary judgment, seeking dismissal of the
    plaintiffs claim for uninsured automobile coverage under the policy and the cross-claim
    brought by the Minister in the name of Cresswell.  CAA argued both that the
    plaintiff was not entitled to coverage under the policy because he knowingly
    drove with a suspended drivers licence and that the Ministers cross-claim on
    behalf of Cresswell was barred by the
Limitations Act
.

[14]

Counsel
    for the plaintiff took no position on the summary judgment motion, and agreed
    to dismiss the action against CAA on a without costs basis.  The only party
    that opposed CAAs motion for summary judgment was the Minister, on behalf of
    Cresswell.

[15]

The
    motion judge concluded that the plaintiff was covered by the policy, and that
    the
Limitations Act
does not apply to a cross-claim made by the
    Minister on behalf of a defendant pursuant to s. 8(2) of the
Motor Vehicle
    Accident Claims Act
, R.S.O. 1990, c. M.41 (the MVACA). He accordingly
    dismissed CAAs motion for summary judgment.

[16]

CAA
    appeals that order.

III.

INTERPRETATION OF THE POLICY

(1)

A  Framework

[17]

The
    interpretation issue involves the interplay of the
Insurance Act
,
    R.S.O. 1990, c. I.8, (the Act);
Uninsured
    Automobile Coverage
, R.R.O. 1990, Reg. 676 (Reg. 676); the Schedule that
    forms part of Reg. 676 (the Schedule); and the auto insurance policy itself.  All
    of these must be considered to determine if the plaintiff is entitled to
    uninsured automobile coverage under the policy.

(a)

The Act, Reg. 676 and the Schedule

[18]

Since
    January 1, 1969, the Act has provided that certain statutory conditions 
    including the condition that the insured not drive or operate or permit any
    other person to drive or operate the automobile unless the insured or other
    person is authorized by law to drive or operate it  are deemed to be part of
    certain types of insurance contracts of automobile insurance.

[19]

The
    current iteration of this deeming provision, s. 234(1) of the Act, was enacted
    on January 1, 1994.  It provides:

The conditions prescribed by the regulations made
    under paragraph 15.1 of subsection 121 (1) are statutory conditions and shall
    be deemed to be part of every contract to which they apply and shall be printed
    in English or French in every policy to which they apply with the heading
    Statutory Conditions or Conditions légales,  as may be appropriate.

[20]

Until
    January 1, 1994, the statutory conditions were set out in the Act. Section 121(1)(15.1),
    also enacted on January 1, 1994, provided for the statutory conditions to be
    set out in a regulation to the Act:

The Lieutenant Governor in Council may make
    regulations... for the purpose of section 234, prescribing statutory conditions
    and the types of contracts of automobile insurance to which the statutory
    conditions apply[.]

[21]

O.
    Reg. 777/93, in force on January 1, 1994,  prescribed the following statutory
    condition:

4. (1) The insured shall not drive or operate or
    permit any other person to drive or operate the automobile unless the insured
    or other person is authorized by law to drive or operate it.

[22]

This
    condition is identical to that set out in the
Act
prior to 1994: see R.S.O.
    1990, c. I-8, s. 234(2)(5)(1).

[23]

Significantly,
    on January 1, 1994, s. 234(3) was also enacted:

Except as otherwise provided in the contract
,
    the statutory conditions referred to in subsection (1)
do not apply to the
    insurance required by section 265 or 268.
[Emphasis added.]

[24]

Section
    265 requires uninsured automobile coverage.  Effective March 1, 1980, uninsured
    automobile coverage, which had been optional and limited in scope since 1969,
    became mandatory. The purpose of the provision was to spread the risk of
    uninsured drivers among drivers (through insurance policies) rather than among
    the tax base generally (through the Fund): see
Chambo v. Musseau
(1993), 15 O.R. (3d) 305 (C.A.), at para. 11.  Section 265(1) of the Act
    requires that every contract evidenced by a motor vehicle liability policy
    provide,
inter alia
, for payment to an insured of all sums the insured
    is entitled to recover from the owner or driver of an uninsured automobile as
    damages for bodily injury, subject to the terms, conditions, provisions,
    exclusions and limits as are prescribed by the regulations.

[25]

Section
    1 of Reg. 676 provides that [t]he terms, conditions, provisions, exclusions
    and limits set out in the following Schedule apply to payments under a motor
    vehicle liability policy under subsection 265 (1) of the Act and shall be
    attached to or included in every motor vehicle liability policy, as a Schedule
    in or to the policy. The content of this regulation is unchanged from its
    original enactment as R.R.O. 1980, Reg. 535.

[26]

While
    Statutory Condition 4(1) is not set out in the Schedule, s. 10 of the Schedule
    provides:

In so far as applicable, the general provisions,
    definitions, exclusions and
statutory conditions
as contained in a
    motor vehicle liability policy also apply to payments under the contract under
    subsection 265 (1) of the Act. [Emphasis added.]

[27]

Section
    234(3) of the Act made a substantive change to the existing statutory scheme
    for uninsured automobile coverage on January 1, 1994.  Before it was enacted,
    the Act did not provide that the statutory conditions do not apply to the
    mandatory scheme of uninsured automobile coverage.

(b)

The policy

[28]

The
    policy is in the form known as OAP 1  the Ontario Automobile Policy approved
    by the Superintendent of Financial Services for use as the Standard Owners
    Policy on or after June 1, 2005.

[29]

OAP
    1 is comprised of eight Sections and an introductory summary at the beginning
    of the policy, which provides a summary of each of the Sections.  The summary
    and Sections 1, 5 and 8 are relevant to this appeal.

[30]

The
    summary of Section 1 at the beginning of the policy provides:

Introduction
contains information that applies to the entire policy. In order to understand
    what is covered and what is not covered by each coverage, you should read
    Sections 1 and 2 and the
entire
Section of the policy that deals with
    the specific coverage. [Emphasis in original.]

[31]

Section
    1.4 provides:

If you fail to meet your responsibilities, claims under this
    policy, with the exception of certain Accident Benefits, may be denied.

[32]

Section
    1.4.5  one of two provisions that CAA relies on to deny coverage  specifies:

You agree not to drive or operate the automobile, or allow
    anyone else to drive or operate the automobile, when not authorized by law.

[33]

Section
    5 provides for uninsured automobile coverage. The summary of Section 5 of the policy
    provides:

Uninsured
    Automobile Coverage
describes what we will cover if someone is
    injured or killed by an uninsured motorist or by a hit-and-run driver. [Emphasis
    in original.]

[34]

Section

5.1.1 of the policy provides:

Uninsured Automobile Coverage Schedule

This Section of the policy describes the terms and conditions
    of the coverage set out in the Uninsured Automobile Coverage Schedule under the
    Insurance Act (Ontario). If there is a difference between the interpretation of
    the wording of this Section and the interpretation of the wording in the
    Schedule, the Schedule prevails. However, 5.3.3 in this Section is an addition
    to the coverage provided by the Schedule.

[35]

Section
    5.9.1 provides:

Conditions of This Policy Must be Met

No person has a right to sue us for compensation under this
    Section for injury or damage caused by an accident involving an uninsured or
    unidentified automobile, unless the conditions in this Section of your policy (Uninsured
    Automobile Coverage) have been met.

[36]

The
    summary of Section 8 of the policy provides:

Statutory
    Conditions
lists the conditions required by the Insurance Act
    for all automobile policies in Ontario.
For convenience
, the
    conditions have been included in each Section of the policy where they apply.
    If there is a discrepancy between the Statutory Conditions and the wording in
    the policy, the Statutory Conditions in Section 8 prevail. [Bold in original;
    italics added.]

[37]

CAA
    also relies on the statutory condition at s. 4(1) of Section 8 of the

policy
    to deny coverage:

4.   (1) The insured shall not drive or operate or permit any
    other person to drive or operate the automobile unless the insured or other
    person is authorized by law to drive or operate it.

(2)

The Motion Judges Reasons

[38]

The
    motion judges reasons can be summarized as follows.

[39]

There
    is an irreconcilable conflict between s. 243(3) of the Act and s. 10 of the
    Schedule and where there is a conflict between a regulation and a statute, the
    statute prevails.

[40]

The
    policy does not provide that the statutory conditions are to apply to uninsured
    automobile coverage.  Indeed, section 5.9.1 of the policy provides that no
    person has a right to sue for compensation under Section 5 of the policy unless
    the conditions in this Section of your policy (Uninsured Automobile Coverage) have
    been met.  Only a breach of one of the conditions in Section 5 will take away
    an insureds right to uninsured automobile coverage.  There is no term in
    section 5 which provides for a denial of coverage where the vehicle is driven,
    or permitted to be driven, by a person who is not authorized by law to drive.

[41]

Section
    1.4 of the policy provides that, If you fail to meet your responsibilities,
    claims under this policy, with the exception of certain Accident Benefits,
may
be denied. Section 1.4.5, on which CAA also relies, follows, section 1.4.  A
    clause that states that claims may be denied cannot clearly be found to
    preclude access to uninsured automobile coverage: see
Matt v. Crawford
(2010), 103 O.R. (3d) 715 (S.C.). Moreover, the clause must be included in
    Section 5 of the policy to take away an insureds right to uninsured automobile
    coverage.  Therefore a breach of s. 1.4.5 does not entitle CAA to deny
    coverage.

(3)

Analysis

[42]

I
    agree with the motion judges conclusion that the plaintiff is not disentitled
    to uninsured automobile coverage under the policy because he drove without a
    valid licence, although my reasoning is somewhat different.

[43]

In
    my view, both provisions of the policy CAA relies on to deny coverage  s.
    1.4.5 and s. 4(1) of Section 8  are statutory conditions.  As such, pursuant
    to s. 234(3) of the Act, they do not apply to uninsured automobile coverage
    unless otherwise provided in the contract.  On my reading, the contract at
    issue, OAP 1, does not otherwise provide.  Accordingly, CAA cannot rely on them
    to deny coverage.

(a)

Sections 1.4.5 and 4(1) of Section 8, are statutory conditions

[44]

I
    address first my conclusion that both s. 1.4.5 and s. 4(1) are statutory
    conditions.

[45]

The
    wording of s. 1.4.5 is the same in all material respects to that of statutory
    condition 4(1), and the insurer indicated in its summary of Section 8 of the
    policy that statutory conditions have been included in each Section of the
    policy where they apply, for convenience. Consequently, in my view, s. 1.4.5 is
    a statutory condition included in Section 1 for convenience.

[46]

This
    conclusion makes it unnecessary to embark on the separate analysis of s. 1.4.5
    conducted by the motion judge on the basis that it was a general term of the
    policy, and not a statutory condition.

[47]

I
    will, however, comment that I do not endorse the motion judges reasoning that
    a clause, such as s. 1.4 of the policy, providing that an insurer may deny
    coverage, cannot preclude coverage.  Such an interpretation would render s. 1.4
    meaningless.  To the extent that
Matt v. Crawford
relied on the same
    reasoning, I disagree with that case.

[48]

On
    the basis that s. 1.4.5 was a general provision of the policy, and not a
    statutory condition, CAA argued that the motion judge also erred in concluding
    that the provision had to be included in Section 5 of the policy to take away
    the insureds right to uninsured automobile coverage.  This, it submits,
    ignores this courts decisions in
Ortiz v. Dominion of Canada General
    Insurance
(2001), 52 O.R. (3d) 130 (C.A.); and
Shipman v. Dominion of
    Canada General Insurance Co.
(2004), 73 O.R. (3d) 144 (C.A.).

[49]

In
Ortiz
, this court found that the general provision in the insurers
    standard motor vehicle policy limiting coverage to accidents occurring in
    Canada or the United States applied to the uninsured automobile coverage
    mandated by the Act through the operation of s. 10 of the Schedule.

[50]

In
Shipman
, this court held that the exclusion of coverage where an
    automobile is used without the owners consent, set out in s. 1.8.2 of the
    policy, applied to uninsured automobile coverage.

[51]

This
    case is quite different from both
Ortiz
and
Shipman
.  The
    general provisions considered in those cases were not statutory conditions, and
    neither s. 234(3) nor a comparable provision applied.

(b)

The policy does not otherwise provide that the statutory
    condition is to apply

[52]

The
    next question to be addressed is whether the contract otherwise provides that
    the statutory condition shall apply to the uninsured automobile coverage.

[53]

I
    am not persuaded by CAAs argument that section 10 of the Schedule is part of
    the policy, either by operation of s. 5.1.1 of the policy itself, or by virtue
    of Reg. 676; Section 10 of the Schedule provides that the statutory conditions
    are to apply to uninsured automobile coverage; and the contract therefore
    otherwise provides that the statutory conditions are to apply to uninsured
    automobile coverage.

[54]

As
    indicated above, the motion judge concluded that there was an irreconcilable
    conflict between s. 234(3) of the Act and s. 10 of the Schedule.  The Act
    provides that statutory conditions do not apply to uninsured automobile
    coverage unless the contract otherwise provides; the Schedule to Regulation 676
    provides that in so far as applicable, the statutory conditions apply.  As the
    motion judge noted, it is an established principle of statutory interpretation
    that regulations are subordinate legislation and in the event of conflict with
    the statute, the statute prevails.  Therefore, he reasoned, in light of this
    conflict, the Act prevails over the Schedule, the statutory conditions do not
    apply to uninsured automobile coverage unless the policy otherwise provides,
    and the policy does not otherwise provide.

[55]

My
    reasoning is different.

[56]

If one considers the sequence in which the provisions were
    enacted, the apparent conflict between s. 234(3) of the Act and s. 10 of the

Schedule is resolved, although CAAs position must nonetheless be
    rejected.

[57]

As
    discussed above, in 1969, the legislature first enacted optional uninsured
    automobile coverage.  At the same time, it specified various conditions  the
    statutory conditions  that were deemed to be part of every motor vehicle
    insurance contract to which they applied. In 1980, uninsured automobile
    coverage became mandatory.

[58]

In
    1994, the legislature amended the Act to provide that the statutory conditions
    do not apply to uninsured automobile coverage except as otherwise provided.

[59]

It
    did not amend any part of Reg. 676.

[60]

Significantly, section 10 of the Schedule begins with the
    words In so far as applicable...  In my view, by subsequently enacting a
    statutory provision that specifically provides that [e]xcept as provided in
    the contract the statutory conditions do not apply to uninsured automobile
    coverage, the legislature signified that the statutory conditions are not
    applicable to uninsured automobile coverage unless the contract itself explicitly
    otherwise provides.  Accordingly, statutory condition 4(1) does not apply to
    uninsured automobile coverage under the policy either by operation of s. 5.1.1
    of the policy or by virtue of Reg. 676.


[61]

I
    agree with the motion judge that the policy does not otherwise provide that the
    statutory conditions are to apply to uninsured automobile coverage.

[62]

The
    summary of Section 1 at the beginning of the policy indicates that Section 1
    contains information that applies to the entire policy.  In my view, this is
    not sufficient to override the statutory directive that statutory conditions do
    not apply to uninsured automobile coverage and make s. 1.4.5 applicable to the
    uninsured automobile coverage in Section 5 of the policy.

IV.

THE LIMITATION PERIOD ISSUE

[63]

I
    agree with the appellant that the motion judge erred in concluding that the
    effect of s. 8 of the MVACA

is that the
Limitations Act
does
    not apply to the Ministers cross-claim on behalf of Cresswell.

[64]

Cresswell
    was served with the Statement of Claim on January 27, 2009. Notice of the
    defendant Cresswells default in filing a statement of defence was sent to the
    Minister on November 5, 2009, as required by s. 8(1) of the MVACA. This
    triggered the application of s. 8(2) of the MVACA:

Within thirty days after receiving notice under
    subsection (1), the Minister may file a defence, make payment into court,
    appear by counsel at the trial or take such other action as he or she considers
    appropriate on behalf and in the name of the defendant, and may thereupon, on
    behalf and in the name of the defendant, conduct the defence, and may, where he
    or she considers it advisable to do so, consent to judgment in such amount as
    he or she may consider proper in all the circumstances, and all acts done in
    accordance therewith shall be deemed to be the acts of such defendant.

[65]

After
    receiving notice, the Minister could not intervene immediately on Cresswells
    behalf because he was represented by counsel at the time.  By July 22, 2010, Cresswells
    counsel indicated he would remove himself from the record so that the Minister
    could become involved.

[66]

On
    March 25, 2011, some sixteen and a half months after receiving notice, the
    Minister forwarded a Statement of Defence and Cross-claim on behalf of
    Cresswell to the other parties.  On April 4, 2011, counsel for the Fund filed a
    requisition to have the noting in default of Cresswell set aside.  On May 26,
    2011, the Statement of Defence and Cross-claim was formally filed.

[67]

The
    motion judge found, and it is conceded, that if the
Limitations Act
applies
    to cross-claims by the Minister under s. 8(2) of the MVACA, the cross-claim is time-barred:
    s. 4 of the
Limitations Act
establishes a two-year limitation period,
    and the effect of s. 18(1) of the
Limitations Act
is that the
    limitation period began to run when Cresswell was served with the Statement of
    Claim on January 27, 2009.  It had therefore expired by March 27, 2011 when the
    Statement of Defence and Cross-claim was served.

[68]

Section
    19(1) of the
Limitations Act
provides that the limitation period set
    out in any other Act is of no effect unless the provision establishing it is
    listed in the Schedule to the
Limitations Act
.  The MVACA is not
    listed in the Schedule.

[69]

The
    motion judge concluded that a defendant who is being represented by the
    Minister is treated differently from a regular defendant.  He cited
Levesque
    v. Levesque
, [2002] O.T.C. 843 (S.C.);
Larkman Estate v. Brigshaw
,
    [2007] O.J. No. 1656 (S.C.); and
Van Kooten v. Day
(1981), 31 O.R.
    (2d) 247 (Div. Ct.); for the principle that the Funds rights to defend under
    s. 8(2) of the MVACA cannot be taken away through the default of the defendant
    personally.  He accordingly reasoned that the
Limitations Act
does not
    affect the Ministers right to defend.

[70]

The
    motion judge also concluded that dismissing the cross-claim would allow form
    to triumph over substance. The Fund is an insurer of last resort. Section 22
    of the MVACA provides that no amount shall be paid or payable out of the Fund
    in respect of an amount paid or payable by an insurer by reason of the
    existence of a policy of insurance.  If the cross-claim were dismissed, and the
    plaintiff proceeded to obtain judgment against Cresswell and then seek payment
    out of the Fund pursuant to s. 7(1) of the MVACA, the Fund could assert in
    defence that it did not have to pay because the policy should have responded. The
    issue of coverage would then be determined. Since the identical issue would
    eventually be decided, the motion judge elected to avoid a multiplicity of
    proceedings by finally deciding the issue.

[71]

The
    cases relied upon by the Fund and the motion judge must, in my view, be
    distinguished.  As explained below, none addresses the issue of the application
    of the
Limitations Act
.  Moreover, the limitation argument in this
    case appears to have arisen as a result of delay by the Fund and not through
    any default of the defendant personally.

[72]

Levesque
and
Larkman
held that s. 8(2) permitted the Minister to initiate third
    party proceedings notwithstanding that such proceedings were not mentioned in
    s. 8(2).  Such proceedings were within the Ministers authority to conduct the
    defence.

[73]

Van
    Kooten
held that the Ministers right to defend under s. 8 of the MVACA
    could not be taken away by the inability to produce the defendant for
    discovery.
Larkman
applied that to the Ministers right to bring a
    third party claim.  The issue was whether the Minister could continue to
    conduct a defence and maintain a third party claim in the name of the defendant
    without requiring the defendant to attend an examination for discovery.

[74]

I
    agree with the motion judge that nothing would be gained by permitting CAAs
    summary judgment motion to proceed, to the extent it relies on the
Limitations
    Act
.  However, in my view, given the clear wording of s. 19(2) of the
Limitations
    Act
, it was not open to the motion judge to conclude that the
Limitations
    Act
is not applicable to the Minister under the MVACA.

[75]

I
    would come to the same result as the motion judge by instead staying CAAs
    summary judgment motion to the extent founded on the limitation argument, on
    this courts own initiative pursuant to s. 106 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43.  This section permits a court to stay any proceeding on
    such terms as are considered just.

[76]

In
Penn-Co Construction Canada (2003) Ltd. v. Constance Lake
, 2008 ONCA
    768, 76 C.L.R. (3d) 1, at para. 4, this court observed that the risk of
    multiplicity of proceedings, the avoidance of cost and inconvenience[,] and the
    risk of inconsistent results are factors to be taken into account in the exercise
    of the discretion conferred by [s. 106].  In my view, all of these factors
    strongly militate towards staying the CAAs limitations defence.  To allow it
    to succeed would simply delay the disposition of this case, at the expense of
    judicial economy and expeditious determination of the issues.

V.

DISPOSITION AND COSTS

[77]

In
    the result, I would dismiss the appeal.

[78]

The
    parties agreed that the successful party would be entitled to costs of $7,500,
    inclusive of disbursements and applicable taxes. I would accordingly award Cresswell
    costs in such amount.

Released: FEB. 22, 2013

JL                                                                    Alexandra
    Hoy J.A.

I
    agree John Laskin J.A.

I
    agree H.S. LaForme J.A.


