The Plaintiffs in the underlying Action, Wayne and Antoinette Steer (the “Steers”), initially bought a house in Calgary which had defects that caused severe water leakage. The Steers unsuccessfully sued their title insurer, Chicago Title Insurance Company (“CTIC”), for the remediation costs. CTIC took the position that the loss was not covered under the subject title insurance policy. Master Prowse agreed with CTIC and dismissed the Steers’ Application for Summary Judgment. Justice Hollins heard the Steers’ Appeal from Master Prowse’s Decision along with CTIC’s cross-Application for Summary Dismissal its favour. Justice Hollins dismissed the Steers’ Appeal and granted Summary Dismissal to CTIC. CTIC, in the within Application, applied for its taxable Schedule “C” Costs of that proceeding.

Hollins J. noted that, subject to Her Ladyship’s discretion, the successful party is generally entitled to its Costs pursuant to Rule 10.29(1)(a). Justice Hollins reviewed the factors set out in Rules 10.33 and Rule 10.31(1) for determining the appropriate Costs award. Justice Hollins further considered when it might be appropriate for a “no costs” award.

Her Ladyship emphasized that a “no costs” award may be appropriate in instances where a Decision is truly public interest litigation and the litigants have no or little pecuniary interest in the outcome (which did not apply in this case) or when the case involves a novel point of law. Justice Hollins found that, prior to Master Prowse’s Decision, the only reported case dealing with the scope of title insurance in similar circumstances was MacDonald v Chicago Title Insurance Company, 2015 ONCA 842 (CanLII) (“MacDonald”), which found that the CTIC policy (identical to the Steers’) did cover their home’s physical defects.

Her Ladyship highlighted that while it was not correct to say that the Steers had “no decided cases on point,” it was true that limited authorities existed. Justice Hollins found that Her Ladyship would have awarded CTIC its full taxable Costs on this matter but for the fact that, when the Steers decided to commence their Action, MacDonald was the only case on which they could receive legal advice and evaluate their options. Justice Hollins reasoned that if Costs are awarded, in part, to encourage parties to take a long, hard look at their chances of success before employing the processes of the Court, then Her Ladyship could not fault the Steers for having begun their Action. However, that reasoning was impacted by the Steers decision to go further and unsuccessfully Appeal the Order of a Master.

Accordingly, Justice Hollins ordered the Steers to pay one-half of CTIC’s taxable Costs.