SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NOS.: CV-12-451160 and CV-12-451726

RE: DEMITRY PAPASOTIRIOU-LANTEIGNE v. THE MANUFACTURER’S LIFE INSURANCE COMPANY

AND RE: DEMITRY PAPASOTIRIOU-LANTEIGNE v. THE GREAT-WEST LIFE INSURANCE COMPANY

BEFORE: Master R. Dash

COUNSEL:
Gordon McGuire, for the plaintiff

Elizabeth Bennett-Martin, for the defendant Manufacturer’s Life Insurance Co.

Jason Larsen, for the defendant Great-West Life Insurance Co.

Jane Martin, for the proposed intervenors, moving parties

COSTS ENDORSEMENT

[1] This endorsement concerns costs of motions to intervene in two actions heard on November 15, 2012 with reasons released on November 27, 2012. The moving party Rosaline Lanteigne was successful in obtaining an order granting her leave to intervene as a party defendant in each action. Those motions were opposed only by the plaintiff. The motion to have the actions heard together and to have the insurance proceeds paid into court was not opposed by any of the parties, although the plaintiff did not advise that he would not oppose until three days before the hearing. The moving party is entitled to her costs of the entire motion in each action.

[2] The motion was complex. Although I was not deciding who was entitled to the insurance proceeds, it was necessary to consider questions of public policy and contract interpretation to determine that Rosaline had an interest in the subject matter of the proceedings. The issues were important to the moving parties in order that their participation in the determination of entitlement to the proceeds be heard in the most efficient and expeditious manner. Costs were increased because of the plaintiff’s failure to advise that he would not oppose joinder and payment into court before all of the intervenors’ materials were prepared. The plaintiff caused the intervenors to incur further costs, not only by insisting that he cross-examine Jocelyne Sterritt, but that she travel from New Brunswick for that examination. The plaintiff did not refer to that cross-examination at the hearing. In my view Jocelyn’s travel expenses are a proper cost of this motion. The plaintiff further required that the intervenors cross-examine the plaintiff. He also failed to advise the intervenors that he had cancelled the examination of a rule 39.03 witness.

[3] The plaintiff failed to put into evidence the insurance contracts despite the fact that the court was to consider an interpretation of the beneficiary clauses. The partial contracts that the plaintiff included in his motion record were not described or supported by an affidavit, but simply inserted into the record. In the plaintiff’s factum he indicated that only one issue would be raised on the motion, yet plaintiff’s counsel attempted to introduce additional arguments at the hearing. The plaintiff should have admitted at an early stage the insurers’ right to pay the proceeds into court and that having the actions tried together was appropriate. In my view it was not reasonable for the plaintiff to have opposed the intervention motion, particularly as he was attempting to argue in essence a determination of the substantive issues in the action, rather than the test on intervention – whether the plaintiff was asserting an interest in the subject matter of the action.

[4] Despite all of the above, I do not find that the behaviour of the plaintiff or his counsel were reprehensible such as to attract an elevated level of costs. Costs will be on a partial indemnity scale.

[5] I do not take issue with Ms. Martin’s actual billing rate, but her partial indemnity rate should more appropriately be $235 per hour, being approximately two-thirds of the substantial indemnity rate. While 67.6 hours seems excessive at first blush for what should have been a fairly straightforward motion to intervene, I find that the position and actions of the plaintiff, as described above, caused significant costs to be incurred. I have also reviewed the dockets, and while a small portion of Ms. Martin’s time might be considered as costs of the action, I accept that the lion’s share of the time was devoted to this motion. In any event the fixing of costs is not simply a mathematical exercise of multiplying hours by an hourly rate, but rather the court must determine what is fair and reasonable and within the reasonable expectations of the losing party. I accept the disbursements and Jocelyn’s travel costs as reasonable and appropriate as costs of the motion.

[6] In my view costs of $18,246 for all motions (in total for both actions) are fair and reasonable, consisting of fees of $14,000, HST of $1,820, disbursements inclusive of HST of $1,981 and travel costs for Jocelyne Sterritt inclusive of HST of $445. Given the issues, their complexity and importance, the positions taken by the plaintiff and the materials produced by the intervenors to address each issue, the plaintiff should reasonably have expected to pay costs in that range had he lost the motion.

[7] I order as follows:

1. The plaintiff shall pay the intervenor Rosaline Lanteigne her costs of these motions within 30 days fixed in the sum of $18,246.00.

Master R. Dash

DATE: January 2, 2013