Lindhorst v. Aviva Insurance Company of Canada
The Court of Appeal held that the motion judge's costs award was unsupported given the respondent's limited success and substituted an all‑inclusive costs award of $1000; the court also held the motion judge exceeded jurisdiction in making defamation findings and set those findings aside.
Source-derived case information.
- Citation
- 2010 ONCA 2
- Parties
- Appellant: Alvin Lindhorst; Respondent: Aviva Insurance Company of Canada
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 7 January 2010
- Procedural Posture
- Civil / Appeal From Motion Judge in Superior Court of Justice
- Outcome
- Appeal allowed in part: set aside the original costs order and the motion judge's defamation findings; substituted costs of $1000; no costs of the appeal.
- Legal Topics
- Costs Award, Motion Judge Jurisdiction, Release, Defamation Findings, Costs Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alvin Lindhorst
Appellant
Aviva Insurance Company of Canada
Respondent
Procedural Posture
Civil / Appeal From Motion Judge in Superior Court of Justice
Legal Issues
- 1 Whether the motion judge properly awarded costs of $3950 given the respondent's limited success
- 2 Whether the motion judge had jurisdiction on the motion to make findings concerning defamation
Ratio Decidendi
The Court of Appeal held that the motion judge's costs award was unsupported given the respondent's limited success and substituted an all‑inclusive costs award of $1000; the court also held the motion judge exceeded jurisdiction in making defamation findings and set those findings aside.
Court Disposition
Appeal allowed in part: set aside the original costs order and the motion judge's defamation findings; substituted costs of $1000; no costs of the appeal.
Orders
- Set aside the costs order of $3950 made by the motion judge.
- Substitute an order awarding the respondent costs of $1000 all inclusive.
Full Case Text
Judgment text and source record
1 paragraphs
Lindhorst v. Aviva Insurance Company of Canada Collection Decisions of the Court of Appeal Date 2010-01-07 Neutral citation 2010 ONCA 2 Docket numbers C49495 Judges Goudge, Stephen Thomas; Cronk, Eleanore Ann; Gillese, Eileen E. Subject Civil Decision Content CITATION: Lindhorst v. Aviva Insurance Company of Canada, 2010 ONCA 2 DATE: 20100106 DOCKET: C49495 COURT OF APPEAL FOR ONTARIO Goudge, Cronk and Gillese JJ.A. BETWEEN: Alvin Lindhorst Plaintiff (Appellant) and Aviva Insurance Company of Canada Defendant (Respondent) Alvin Lindhorst, appearing in person D. Lynn Turnbull and Nelson Dewey, for the respondent Heard: December 18, 2009 On appeal from the order of Justice Jane E. Kelly of the Superior Court of Justice, dated September 9, 2008. APPEAL BOOK ENDORSEMENT [1] The motion judge awarded costs of $3950 to the respondent on its motion. However, the respondent was unsuccessful in obtaining its two major objectives; that the appellant pay $1348 and be required to sign a release. No basis is given for the costs ordered below in the amount ordered and costs principles suggest none. [2] The limited success of the respondent is properly reflected in a costs order of $1000. We would set aside the costs order below and substitute an order in the respondent’s favour of $1000 all inclusive. [3] The appellant also seeks to set aside the findings of the motion judge on the defamation issue, and argues that the motion judge had no jurisdiction on a motion of this kind to make the findings concerning defamation that she did. We agree and we would so order. [4] No costs of the appeal.