Defendant entitled to be separately represented at appeal

Plaintiffs brought action against defendant installer for installing septic system that failed prematurely. Defendant health unit was later added as defendant. Defendants successfully moved to dismiss action during trial on basis that it was statute-barred, and costs were awarded to defendants. Plaintiffs’ appeal was dismissed and defendant installer’s motion for leave to appeal costs award was dismissed. Issues arose concerning costs. Defendant installer’s costs of appeal and proposed cross-appeal, inclusive of HST and disbursements, in amount of $5,125.00, and defendant health unit’s costs of appeal, inclusive of HST and disbursements, in amount of $4,237.52, to be paid by plaintiffs within 30 days. Defendant installer obtained result on appeal at least as favourable as terms of his offer to settle. In circumstances of case, defendant installer was entitled to his costs in relation to appeal on partial indemnity basis for period prior to date of offer and on substantial indemnity basis thereafter. Court was not prepared to award defendant installer any costs in relation to proposed cross-appeal. There could be no doubt that defendant health unit was successful party on appeal. Defendant health unit was entitled to be separately represented at appeal.

Frederick v. Van Dusen (2018), 2018 CarswellOnt 22, 2018 ONSC 106, R. Ryan Bell J. (Ont. Div. Ct.); additional reasons (2017), 2017 CarswellOnt 17500, 2017 ONSC 6681, R. Ryan Bell J. (Ont. Div. Ct.).