Court of Appeal for Ontario

Date: 2018-10-31

Docket: C61453, C61497 & C63532

Panel: Strathy C.J.O., Hourigan and Miller JJ.A.

Between

Plaintiffs (Appellants/Respondents by way of cross-appeal):

• Eldon Fehr
• Angela Watters
• Gaetan Laurier
• Leslie Michael Lucas
• James Patrick O'Hara
• Rebecca Jean Clark
• Lloyd Shaun Clark

and

Defendant (Respondent/Appellant by way of cross-appeal):

• Sun Life Assurance Company of Canada

Counsel

For the appellants/respondents by way of cross-appeal:

• Won J. Kim
• Michael C. Spencer
• Megan B. McPhee
• Aris Gyamfi

For the respondent/appellant by way of cross-appeal:

• F. Paul Morrison
• Dana M. Peebles
• Glynnis P. Burt
• Hovsep Afarian
• Jacqueline L. Cole

Heard: January 16-18, 2018

Appeal Information

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated November 12, 2015, with reasons reported at 2015 ONSC 6931, 56 C.C.L.I. (5th) 15 and additional reasons reported at 2016 ONSC 455; and from the order dated December 7, 2016, with reasons reported at 2016 ONSC 7659, 62 C.C.L.I. (5th) 96; and from the order dated April 11, 2017, with reasons reported at 2017 ONSC 2218, 66 C.C.L.I. (5th) 201.

Costs Endorsement

[1] These reasons address the costs of the motions for certification and summary judgment in the Superior Court and the costs of the appeal to this court.

[2] In the Superior Court, the plaintiffs were ordered to pay costs of $1 million following their unsuccessful certification motion and their substantially unsuccessful defence of the defendant's summary judgment motion.

[3] The plaintiffs came to this court without a certified class action and with their individual claims either wholly or partially dismissed as time-barred.

[4] They left this court with a certified class action with respect to some, but not all of their claims. Their claim for negligent misrepresentation, which was the focus of much of the appeal, was not certified.

[5] The plaintiffs also left this court with some of their individual claims alive, but potentially time-barred, an issue to be determined at a later date.

[6] The plaintiffs seek costs of $1.3 million for the certification and summary judgment motions in the court below and $200,000 for the costs of the appeals.

[7] Sun Life submits that it should be entitled to costs of $500,000 with respect to the certification motion, on the basis that it was the successful party on the more substantial part of the claim. It also submits that there should be no costs of the appeal as success was divided.

[8] In our view, there is no basis on which to deprive the plaintiffs of costs in either respect. Their success in having the action certified on some common issues and in reversing summary judgment should be reflected in an appropriate award of costs. In our view, $600,000 inclusive of disbursements and all applicable taxes would be a fair and reasonable award, in respect of the costs in the court below.

[9] Similarly, while success was divided on the appeal, there is no question that the plaintiffs ended up significantly better off and the defendant worse off. The plaintiffs are entitled to their costs of the appeal fixed at $100,000, inclusive of disbursements and all applicable taxes.

[10] Order accordingly.

"G.R. Strathy C.J.O."

"C.W. Hourigan J.A."

"B.W. Miller J.A."