Canadian National Railway Company v. Royal and Sun Alliance InsuranceCompany of Canada
The insurers, as the ultimately successful parties on appeal, are entitled to costs on the partial indemnity scale: $135,000 inclusive for these proceedings and $510,000 inclusive for the trial; a recovery of approximately 65% of claimed legal fees was appropriate on the partial indemnity scale rather than the 75%...
Source-derived case information.
- Citation
- 2007 ONCA 531
- Parties
- Plaintiff: Canadian National Railway Company; Plaintiff: Grand Trunk Western Railroad Incorporated; Plaintiff: St. Clair Tunnel Company; Defendant: Royal and Sun Alliance Insurance Company of Canada; Defendant: AXA Assurances Inc.; Defendant: The Continental Casualty Company of Canada; Defendant: Reliance Insurance Company; Defendant: Aviva Canada Inc.; Defendant: St. Paul Fire and Marine Insurance Company
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 16 July 2007
- Procedural Posture
- Civil Appeal and Cross Appeal (insurance Coverage/costs) / Court of Appeal Judgment on Costs Following Appeal and Cross Appeal
- Outcome
- Majority allowed the appeal and dismissed the cross-appeal; insurers awarded costs on the partial indemnity scale.
- Legal Topics
- Costs Awards, Partial Indemnity Costs, Trial Costs, Percentage Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Canadian National Railway Company
Plaintiff
Grand Trunk Western Railroad Incorporated
Plaintiff
St. Clair Tunnel Company
Plaintiff
Royal and Sun Alliance Insurance Company of Canada
Defendant
AXA Assurances Inc.
Defendant
The Continental Casualty Company of Canada
Defendant
Reliance Insurance Company
Defendant
Aviva Canada Inc.
Defendant
St. Paul Fire and Marine Insurance Company
Defendant
Procedural Posture
Civil Appeal and Cross Appeal (insurance Coverage/costs) / Court of Appeal Judgment on Costs Following Appeal and Cross Appeal
Legal Issues
- 1 Whether insurers are entitled to costs of the appeal and costs of the trial
- 2 What quantum is appropriate for costs on the partial indemnity scale for both the appeal and the trial
- 3 What percentage of legal fees charged may be recovered on the partial indemnity scale
Ratio Decidendi
The insurers, as the ultimately successful parties on appeal, are entitled to costs on the partial indemnity scale: $135,000 inclusive for these proceedings and $510,000 inclusive for the trial; a recovery of approximately 65% of claimed legal fees was appropriate on the partial indemnity scale rather than the 75% claimed by insurers.
Court Disposition
Majority allowed the appeal and dismissed the cross-appeal; insurers awarded costs on the partial indemnity scale.
Orders
- Insurers entitled to costs of these Court of Appeal proceedings on partial indemnity scale fixed at $135,000 inclusive of disbursements and GST.
- Insurers entitled to costs of the trial on partial indemnity scale fixed at $510,000 inclusive of disbursements and GST.
Full Case Text
Judgment text and source record
1 paragraphs
Canadian National Railway Company v. Royal and Sun Alliance InsuranceCompany of Canada Collection Decisions of the Court of Appeal Date 2007-07-16 Neutral citation 2007 ONCA 531 Docket numbers C42591 Judges Rosenberg, Marc; Cronk, Eleanore Ann; Lang, Susan Elizabeth Subject Civil Decision Content CITATION: Canadian National Railway Company v. Royal and Sun Alliance Insurance Company of Canada , 2007 ONCA 531 DATE: 20070716 DOCKET: C42591 COURT OF APPEAL FOR ONTARIO ROSENBERG, CRONK and LANG JJ.A. B E T W E E N : CANADIAN NATIONAL RAILWAY COMPANY, GRAND TRUNK WESTERN RAILROAD INCORPORATED, and ST. CLAIR TUNNEL COMPANY Plaintiffs Earl A. Cherniak Q.C., Kirk F. Stevens and David E. Liblong for the Appellants (Respondents by Cross-appeal) (Respondents (Appellants by Cross-appeal)) - and - ROYAL AND SUN ALLIANCE INSURANCE COMPANY OF CANADA, AXA ASSURANCES INC., THE CONTINENTAL CASUALTY COMPANY OF CANADA, RELIANCE INSURANCE COMPANY, AVIVA CANADA INC., and ST. PAUL FIRE AND MARINE INSURANCE COMPANY Defendants Richard H. Shaban and Sharon C. Vogel for the Respondents (Appellants by Cross-appeal) (Appellants (Respondents by Cross-appeal)) Heard: September 11 and 12, 2006 On appeal and cross-appeal from the judgment of Justice John D. Ground of the Superior Court of Justice dated October 7, 2004, reported at [2004] O.J. No. 4086. COSTS ENDORSEMENT [1] On March 26, 2007, the court released its reasons for judgment in this matter, by which a majority of the court allowed the appeal and dismissed the cross-appeal. As they were invited to do, the parties have filed written submissions on the issue of costs in this court, and in the court below, given that result. [2] After considering those submissions, the court has decided as follows. [3] The insurers are entitled to their costs of these proceedings, on the partial indemnity scale. We fix those costs in the total amount of $135,000.00, inclusive of disbursements and GST. [4] The insurers are also entitled to their costs of the lengthy trial in this case, on the partial indemnity scale. The trial involved admittedly complex factual and legal issues, highly technical and complicated evidence, and lengthy expert testimony. In these circumstances, all parties, including the CN companies, reasonably could have expected a substantial award of trial costs to the parties who were ultimately successful. [5] We note that the trial judge awarded the CN companies, the plaintiffs in this action, their costs of the trial in an amount in excess of $1.1 million. [6] However, counsel for the insurers claim legal fees representing approxi-mately 75% of the fees apparently charged to their clients. In our view, this percentage recovery is excessive on the partial indemnity scale. Taking into account a percentage recovery that we regard as appropriate in this case – approximately 65% – and the submissions of the parties, we fix the insurers’ costs of the trial in the total amount of $510,000.00, inclusive of disbursements and GST. “M. Rosenberg J.A.” “E.A. Cronk J.A.” “S.E. Lang J.A.”