



COURT OF APPEAL FOR ONTARIO

CITATION: Beniuk v. Leamington
    (Municipality), 2020 ONCA 424

DATE: 20200626

DOCKET: C66773

van Rensburg, Paciocco and
    Thorburn JJ.A.

BETWEEN

Angela and Dennis Beniuk

Plaintiffs (Appellants)

and

The Corporation of the
    Municipality of Leamington

Defendant (Respondent)

Raymond G. Colautti and Eric
    Florjancic, for the appellants

Tom Serafimovski and Samuel Atkin, for
    the respondent

Heard: in writing

COSTS
    ENDORSEMENT

[1]

The appellants appealed an order on a summary
    judgment motion dismissing their claims as statute-barred. At the hearing of
    the appeal, the parties confirmed agreement to an all-inclusive amount of
    $8,000 in costs to the successful party. We reserved judgment on the appeal.

[2]

There was mixed success in the appeal; the
    details are set out in our reasons dated March 25, 2020 and reported at 2020
    ONCA 238. We ordered costs of the appeal to the respondent in the sum of $6,500
    and reduced the respondents costs in the court below from $11,850, inclusive
    of taxes and disbursements to the inclusive amount of $10,000. The order
    reflected the parties mixed success on the appeal.

[3]

At the request of the appellants counsel we
    agreed to receive written costs submissions. We have now considered those
    submissions.

[4]

The appellants contend that the appropriate
    order to reflect the parties mixed success is that each side should bear their
    own costs of the appeal and that the costs of the motion in the court below
    should be in the cause. The respondent asserts that the order made by this
    court fairly reflects the fact that, while success was mixed, they were more
    successful on the appeal, and the appellants achieved limited success.

[5]

We agree with the respondent that the costs
    award already made properly reflects the divided success on the appeal. The
    appellants were unsuccessful on the two main thrusts of their appeal: on the
    applicability of the
Real Property Limitations Act
and on
    discoverability under s. 5 of the
Limitations Act
,
2002
. As
    we stated at para. 78 of our reasons the appellants claim is largely
    statute-barred. The effect of the appeal is that the appellants are entitled
    to proceed with their claim, but only as it relates to damages sustained after
    January 17, 2016.

[6]

For these reasons we affirm the award of costs
    set out in our reasons dated March 25, 2020.

K.
    van Rensburg J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.


