Court File and Parties

Court File No.: CV-15-535646 Date: 2016-06-08 Superior Court of Justice - Ontario

Re: The Manufacturers Life Insurance Company, Applicant And: The Estate of Edward E. Sorozan, Respondent

Before: S. F. Dunphy, J.

Counsel: Nathan M. Ross, for the Moving Party Edward Sorozan Jr. Marie G. Michaels, for the Responding Party Lise Partanen

Heard: April 20, 2016

Costs Endorsement

[1] I have now had an opportunity to review the costs submissions of both parties. I find that I must give some weight to the good faith efforts at settling this motion that were made by Ms. Partanen. Shortly prior to the commencement of the proceedings leading to this motion, Ms. Partanen offered to divide the portion of the insurance proceeds in dispute equally with Mr. Sorozan Jr. She made a further (considerably less favourable) offer after argument but prior to the release of my reasons.

[2] I do not propose to attach any weight to the new offer to settle made while reasons were pending but after argument. I am however persuaded that some weight should be given to the offer to settle the motion made prior to litigation, even if not in technical conformity with Rule 49 of the Rules of Civil Procedure, where the offer was able to be accepted and was on terms that were clearly more favourable than those obtained by Mr. Sorozan Jr. While this was not an official offer to settle and it is not clear that it was actually open to acceptance up until the time of the hearing in law (I have little doubt that it was in fact), such an offer is entitled to some weight if not necessarily the same weight as one that was formally made and legally open to acceptance up until the commencement of the hearing of the motion.

[3] Absent such an offer, it would have been my intention to leave both parties to bear their own costs considering the unusual circumstances of this case. Neither party bears any fault for the clerical problems of the insurer or Mr. Sorozan Sr.’s former employer. The issue therefore is what value I should place on the favourable offer made.

[4] The full indemnity costs outline presented to me by Ms. Partanen totals $7,231.83 including disbursements and HST. I find that awarding Ms. Partanen costs of $2,500 is fair and reasonable in that it achieves a balance between the principle of indemnity, the reasonable expectations of the losing party and the unique circumstances of the case while allocating appropriate weight to the very favourable settlement offer that Ms. Partanen made that might have avoided both parties having to “go the distance”. Mr. Sorozan Jr. had a reasonable case to advance to be sure but it was by no means a “sure thing” and he was given an opportunity to avoid all of the costs and uncertainties of litigation very early on with terms more favourable than litigation ultimately delivered.

[5] The moving party Mr. Sorozan Jr. is accordingly ordered to pay the costs of Ms. Partanen that I fix in the amount of $2,500 all inclusive.

S. F. Dunphy, J. Date: June 8, 2016