CITATION: Fehr v. Sun Life Assurance Company of Canada, 2015 ONSC 3918
COURT FILE NO.: 10-CV-411183CP
DATE: 20150617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELDON FEHR, ANGELA WATTERS, GAETAN LAURIER, LESLIE MICHAEL LUCAS, JAMES PATRICK O’HARA, REBECCA JEAN CLARK, AND LLOYD SHAUN CLARK
Plaintiffs
– and –
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
Michael C. Spencer for the Plaintiffs
F. Paul Morrison, Glynnis P. Burt and Jacqueline L. Cole for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Plaintiffs brought a refusals motion in this proposed class action scheduled for an eight-day hearing beginning on September 28, 2015. I dismissed the motion; see Fehr v. Sun Life Assurance Company of Canada, 2015 ONSC 2908.
[2] As the successful party on the motion, the Defendant Sun Life seeks $30,000, all inclusive, in costs on a partial indemnity basis payable forthwith.
[3] The Plaintiffs concede that the Defendant is entitled to costs but submits that the amount claimed is unreasonable for an uncomplicated refusals motion. The Plaintiffs submit that the appropriate award is $5,000, all inclusive.
[4] This is a very hard fought action. I did not regard the refusals motion as uncomplicated, and rather I regarded it for what it was; namely, an important interlocutory motion brought by the Plaintiffs because they genuinely, but mistakenly, thought they needed and were entitled to have their questions answered.
[5] The Plaintiffs ask rhetorically: “Has a defendant ever not called a plaintiff's request for documents a fishing expedition?”, to which the rhetorical response is to ask: “Has a plaintiff ever not called a defendant’s refusals an egregious breach of the defendant’s obligations to produce relevant documents?”
[6] Rhetoric aside, the point is that the Plaintiffs thought it was important enough to bring the refusals motion, and it hardly lies in their mouth to diminish the complexity or the importance of their own motion.
[7] That said, the Defendant’s claim for costs for a refusals motion is excessive and beyond what the Plaintiffs might reasonably expect to pay for an unsuccessful motion in this vigorously contested litigation.
[8] In my opinion, having regard to the normal criteria that guides the Court’s discretion about costs, the appropriate award is $18,000, all inclusive, payable to the Defendant in any event of the certification motion.
[9] Order accordingly.
Perell, J.
Released: June 17, 2015
CITATION: Fehr v. Sun Life Assurance Company of Canada, 2015 ONSC 3918
COURT FILE NO.: 10-CV-411183CP
DATE: 20150617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELDON FEHR, ANGELA WATTERS, GAETAN LAURIER, LESLIE MICHAEL LUCAS, JAMES PATRICK O’HARA, REBECCA JEAN CLARK, AND LLOYD SHAUN CLARK
Plaintiffs
‑ and ‑
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
REASONS FOR DECISION - COSTS
Perell, J.
Released: June 17, 2015