ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-CV-411183-CP
DATE: August 9, 2013
BETWEEN:
Joseph (Jung Yub) Kang
Plaintiff
– and –
Sun Life Assurance Company of Canada
Defendant
W.J. Kim, for the Plaintiff
F.P. Morrison, G.P. Burt, and C. Daniel Wolski, for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
Perell, J.
REASONS FOR DECISION - COSTS
[1] This is a reconsideration of a reconsideration of a costs award.
[2] In late 2011, Sun Life brought a motion to strike out numerous paragraphs in Mr. Kang’s Revised Fresh as Amended Statement of Claim. I granted the motion; see Kang v. Sun Life Assurance Company of Canada, 2011 ONSC 6335. I awarded Sun Life costs of $76,654.02, all inclusive, on a partial indemnity basis payable in any event of the cause; see Kang v. Sun Life Assurance Company of Canada, 2011 ONSC 7436.
[3] Although accepting that some paragraphs should be struck out, Mr. Kang appealed the balance of my order. The Court of Appeal granted the appeal in part; see Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 118. The Court of appeal did not overturn my initial costs award, but it directed that I reconsider the costs award; see Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 387.
[4] I reconsidered the costs award, and I changed the order. I decided that in the circumstances of this case, the fairest award is to fix costs at $75,000.00, and make those costs in the cause; see Kang v. Sun Life Assurance Company of Canada, 2013 ONSC 4800.
[5] After I released my reconsideration reasons, it was pointed out to me that I had overlooked that I had permitted Mr. Kang to deliver a reply to the costs submissions of Sun Life. In these circumstances, I re-opened the reconsideration, and I received another round of submissions from Mr. Kang and from Sun Life.
[6] In his second round of costs submissions, Mr. Kang submits that I undertook a mechanical counting of paragraphs to determine that there was a divided success on the motion. He says that he was the successful party on the motion.
[7] However, I did not decide that success was divided based on a mechanical counting of paragraphs, nor did I make a distributive costs award. Rather, I decided that each party had substantial victories in the prosecution and defence of what was for each of them an important interlocutory motion, and, therefore, success was divided. As successful as Mr. Kang may have been objectively or subjectively, the outcome of Sun Life’s pleadings motion was a divided success. Mr. Kang has not persuaded me that he was the only victor and that Sun Life’s success was a trifle. It was a substantial success, and my assessment of it is not dependent on some sort or score card, but on the reality that Sun Life achieved the substantive success of striking out numerous paragraphs that did not comply with the Rules of Civil Procedure. There is good reason to make costs in the cause.
[8] Therefore, Mr. Kang’s submission is incorrect, and, in any event, I am not persuaded that I should change the costs order based on Mr. Kang’s critique of my already released reasons.
[9] I am also not persuaded by Sun Life’s submission that I should adjust my order to award it $25,000 to be offset against the costs it must pay Mr. Kang with respect to his appeal to the Court of Appeal.
[10] Order accordingly.
Perell, J.
Released: August 9, 2013
COURT FILE NO.: 10-CV-411183-CP
DATE: August 9, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph (Jung Yub) Kang
Plaintiff
‑ and ‑
Sun Life Assurance Company of Canada
Defendant
REASONS FOR DECISION – COSTS (No. 2)
Perell, J.
Released: August 9, 2013