Successful party on primary claim entitled to costs on partial indemnity basis

Parties shared home owned by man during their six-year common law relationship. Woman claimed interest in $410,000 increase in equity in man’s home during parties’ cohabitation based on unjust enrichment due to her contributions to common living expenses and to maintenance and repair of home. Prior to trial, man offered to pay woman $5,000 in full satisfaction of her claim, which offer was not accepted. Trial judge dismissed woman’s action and awarded man his costs, on partial indemnity basis, in amount of $20,211.29. Woman appealed and offered to settle for $57,747.50, including trial and appeal costs, but man did not accept. Appeal was allowed in part. Woman was awarded $5,000 plus interest, representing return of one-time amount she had given man towards mortgage on property. After hearing of appeal, parties agreed that successful party should receive partial indemnity costs in amount of $9,500, inclusive of disbursements and taxes. Man awarded $9,500 for costs of appeal. Parties had differing views as to who was “successful party” and appropriate costs awards of trial and appeal. Appeal was primarily claim for constructive trust, on which issue he was successful. Accordingly, man was entitled to his costs in agreed-upon amount of $9,500. Given history of matter, there was no reason to interfere with trial judge’s award of costs of trial.

Reiter v. Hollub (2017), 2017 CarswellOnt 4887, 2017 ONCA 285, K. Feldman J.A., Gloria Epstein J.A., and B.W. Miller J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 2943, 2017 ONCA 186, K. Feldman J.A., Gloria Epstein J.A., and B.W. Miller J.A. (Ont. C.A.).