Monk v. Farmers' Mutual Insurance Company (Lindsay)
The appellant was entitled to partial indemnity costs for the motion fixed at $90,000 (inclusive of taxes and disbursements) to be paid $55,000 by Farmers and $35,000 by Muskoka because the motion judge's access to justice and disproportionality concerns were not applicable; however, there is no order for costs on...
Source-derived case information.
- Citation
- 2016 ONCA 181
- Parties
- Appellant: Diana Lynn Monk; Respondent: Farmers’ Mutual Insurance Company (Lindsay); Respondent: Muskoka Insurance Brokers Ltd.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 2 March 2016
- Procedural Posture
- Civil / Appeal Costs Endorsement
- Outcome
- Appeal allowed in part; costs award for the motion to appellant; no order as to costs of the appeal
- Legal Topics
- Costs of Litigation, Partial Indemnity Costs, Access to Justice, Allocation of Costs, Limitation (time Bar)
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diana Lynn Monk
Appellant
Farmers’ Mutual Insurance Company (Lindsay)
Respondent
Muskoka Insurance Brokers Ltd.
Respondent
Procedural Posture
Civil / Appeal Costs Endorsement
Legal Issues
- 1 Whether the appellant was entitled to costs for the motion
- 2 Quantum of costs to be awarded for the motion
- 3 Whether costs should be ordered for the appeal given counsel's undertaking at the hearing
Ratio Decidendi
The appellant was entitled to partial indemnity costs for the motion fixed at $90,000 (inclusive of taxes and disbursements) to be paid $55,000 by Farmers and $35,000 by Muskoka because the motion judge's access to justice and disproportionality concerns were not applicable; however, there is no order for costs on the appeal because counsel for the appellant expressly declined to seek costs at the hearing and cannot resile from that position.
Court Disposition
Appeal allowed in part; costs award for the motion to appellant; no order as to costs of the appeal
Orders
- Farmers’ Mutual Insurance Company (Lindsay) shall pay the appellant $55,000 inclusive of taxes and disbursements
- Muskoka Insurance Brokers Ltd. shall pay the appellant $35,000 inclusive of taxes and disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Monk v. Farmers' Mutual Insurance Company (Lindsay) Collection Decisions of the Court of Appeal Date 2016-03-02 Neutral citation 2016 ONCA 181 Docket numbers C59094 Judges Feldman, Kathryn N.; Cronk, Eleanore Ann; Huscroft, Grant Subject Civil Decision Content 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 court’s 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.”