



COURT OF APPEAL FOR ONTARIO

CITATION: Monk v. Farmers' Mutual Insurance Company
    (Lindsay), 2016 ONCA 181

DATE: 20160302

DOCKET: C59094

Feldman, Cronk and Huscroft JJ.A.

BETWEEN

Diana Lynn Monk

Plaintiff/Responding Party (Appellant)

and

Farmers
    Mutual Insurance Company (Lindsay) and

Muskoka
    Insurance Brokers Ltd.

Defendants/Moving Parties (Respondents)

David A. Morin, for the appellant

Martin P. Forget, for the respondent Farmers Mutual
    Insurance Company (Lindsay)

Demetrios Yiokaris, for the respondent Muskoka Insurance
    Brokers Ltd.

Heard: May 6, 2015

Released:  December 23, 2015

On appeal from the order of Justice Edward J. Koke of the
    Superior Court of Justice, dated June 27, 2014, with reasons reported at (2014),
    37 C.C.L.I. (5th) 92 (Ont. S.C.).

COSTS ENDORSEMENT

[1]

The parties were unable to agree on costs following the courts decision
    allowing the appeal in this matter. The appellant seeks costs for the motion
    and appeal.

The motion

[2]

Counsel for the appellant seeks $125,000 in costs for the motion on a
    partial indemnity basis.

[3]

The respondents submit that costs should be left to the motion judge, as
    there remains a live issue as to whether the claim is time-barred. In the alternative,
    the appellant should be awarded nothing, or no more than $10,000.

[4]

The motion judge wrote lengthy reasons awarding the respondents
    $50,000 ($30,000 to Farmers and $20,000 to Muskoka) rather than the
    $141,000 they sought. The motion judge discounted the costs to the respondents
    because of concerns about access to justice and disproportionality, given the
    size of the claim.

[5]

Those concerns are not relevant here. The appellant is entitled to costs
    on a partial indemnity basis, which should be fixed at $90,000,

inclusive of taxes and disbursements. $55,000
    shall be paid by Farmers and $35,000 by Muskoka.

The appeal

[6]

Counsel for the appellant seeks $34,000 in costs for the appeal on a
    partial indemnity basis.

[7]

At the hearing, counsel for the appellant stated clearly that, given the
    novelty of the issue and the importance of access to justice, he was not
    seeking costs even if he succeeded on the appeal. He maintained this position
    under questioning from the panel.

[8]

Counsel cannot resile from the position maintained at the hearing.

[9]

In the circumstances there is no order as to costs on the appeal.

Disposition

[10]

Farmers
    shall pay the appellant $55,000. Muskoka shall pay the appellant $35,000. Both
    figures are inclusive of taxes and disbursements.

K.
    Feldman J.A.

E.A.
    Cronk J.A.

Grant
    Huscroft J.A.


