ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-5358
DATE: 20140411
B E T W E E N:
KAREN KASSBURG
Plaintiff
Geoffrey Larmer, Counsel
- and -
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
Duncan McDuff, Counsel
Ellies J.
REASONS FOR DECISION ON COSTS
[1] On March 7, 2014 I released reasons for decision (2014 ONSC 1523) in which I dismissed a motion by the defendant for summary judgment against the plaintiff. I held that the plaintiff’s claim was not barred by the expiry of either the contractual or the statutory limitation period. I invited the parties to make written submissions concerning the issue of costs, which I have now received and for which I wish to thank counsel.
[2] The parties agree that partial indemnity costs should be awarded to the successful plaintiff. They disagree, however, on the amount. The plaintiff seeks partial indemnity fees of $35,951.14 and disbursements in the sum of $1,591.57, both figures inclusive of HST. The Defendant submits that this is excessive. I agree.
[3] Counsel for the plaintiff assumed carriage of this matter from the plaintiff’s previous lawyer after the motion was originally brought. The amount sought for partial indemnity fees on the part of the plaintiff includes the time spent by plaintiff’s counsel familiarizing himself with the entire file. Plaintiff’s counsel argues that he was required to do so as a result of an offer to settle which had been made by the defendant and which was only open for acceptance until the commencement of the summary judgment motion. I share the defendant’s view that this work would have been necessary in any event and ought not to be part of the costs awarded in this motion. Further, given that the original hearing date for the motion of June 28, 2013 was adjourned to accommodate the fact that Mr. Larmer was new to the file, it cannot be said that he was required to familiarize himself with the entire file because of a time limit uncompromisingly imposed by the defendant.
[4] I also agree with the defendant’s submission that costs should reflect the fact that, although the motion was important, it involved a discreet issue and a simple record. As the defendant points out, the affidavit it filed in support of its motion was only eight pages long and that of the plaintiff was only ten. No cross-examinations were conducted and the argument proceeded over the course of one day.
[5] I am unable to agree, however, with the defendant’s submission that the plaintiff’s costs should be reduced to take into account the difficulties it had scheduling the motion. While the time Mr. Larmer was required to spend familiarizing himself with the matter ought not to form part of the costs award, as I have held, the plaintiff ought not to be penalized for the fact that Mr. Larmer wanted to do so before the motion commenced and the offer to settle expired.
[6] In his submissions on the costs issue, counsel for the plaintiff not only referred to the fact that an offer to settle was made, but he also included a copy of the offer in his written materials. The defendant requests that the costs awarded to the plaintiff reflect a sanction for the improper disclosure of its offer to settle. While I agree that disclosure of the terms of the offer beyond its expiry date was unnecessary, I am unaware of any authority by virtue of which that disclosure, by itself, should attract cost consequences. The disclosure has done nothing more at this point than make it impossible for me to preside at the trial of this matter. Given the number of other judges available in our jurisdiction to try this matter, this is unlikely to result in any delay. If it does, the disclosure of the offer may be raised when the matter of costs is dealt with after the trial.
[7] In the meanwhile, to ensure that no other harm results from disclosure of the terms of the offer, I will order that the plaintiff’s written submissions be sealed and that they not be opened until the trial in this matter has concluded or without further order of this court.
[8] The defendant submits that a costs award in this motion of $10,000 would be more in keeping with costs awards in similar motions. I agree. However, I believe that the disbursements should be paid in addition to that amount. In my view, this represents an amount that is fair and reasonable and within the expectation of the parties: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.).
[9] For these reasons, an order will issue:
(1) That the defendant shall forthwith pay to the plaintiff her costs on a partial indemnity basis in the amount of $11,591.57, inclusive of HST.
(2) That the plaintiff’s written submissions on costs shall be sealed pursuant to s.137(2) of the Courts of Justice Act, R.S.O. 1990 Chap. C.43, and shall not be opened until the trial in this matter is concluded or without further order of this court.
Ellies J.
Released: 20140411
COURT FILE NO.: CV-12-5358
DATE: 20140411
ONTARIO
SUPERIOR COURT OF JUSTICE
KAREN KASSBURG
Plaintiff
– and –
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
REASONS FOR DECISION ON COSTS
Ellies J.
Released: 20140411