Court File and Parties
Court File No.: CV-1500534694-0000 Date: 20190221 Superior Court of Justice - Ontario
Re: Leisa Hutton, Plaintiff And: The Manufacturers Life Insurance Company c.o.b. as Manulife Financial, Defendant
Before: Mr. Justice A. J. O’Marra
Counsel: John Philp and Aron Zaltz, for the Plaintiff Amir Tamari, for the Defendants
Heard: December 13, 2018
Costs Endorsement
[1] The plaintiff, Leisa Hutton commenced an action against the defendant, The Manufacturers Life Insurance Company, (Manulife Financial) for denial of long-term disability benefits under an insurance policy issued by the defendant contracted by plaintiff’s employer, Quinte Health Care, as required by the terms of the collective agreement with the plaintiff’s union, the Ontario Public Service Employees Union (OPSEU).
[2] The defendant, Manulife Financial brought a motion to dismiss the plaintiff’s action on the basis that the court lacks jurisdiction to deal with a claim that arises out of and is governed by the terms and conditions of a collective agreement between her Union OPSEU and employer, Quinte Health Care, a matter exclusively within the arbitral jurisdiction of the collective agreement. For reasons given in 2019 ONSC 279 finding that entitlement to the long-term disability benefits under the collective agreement was properly within the jurisdiction of an arbitrator to determine, the defendant’s motion to dismiss the plaintiff’s action was granted.
[3] The defendant claims costs on the motion in the amount of $17,233.80, inclusive of HST and disbursements on the following basis:
- The action against the defendant was dismissed in its entirety.
- There were multiple cross-examinations leading to the motion.
- The matter was moderately to moderately high in complexity.
- The matter of jurisdiction was important to the parties involved, and of particular importance to the defendant given that the question of jurisdiction has and will arise in similar circumstances.
- The defendant made an offer to settle, November 12, 2018 to dismiss the action without costs in exchange for dismissal of the action for no consideration and the execution of a full and final release acceptable to the parties.
[4] The plaintiff requests the court exercise its jurisdiction not to award costs or to order a nominal amount in the circumstances of this matter. The plaintiff submits that she experienced significant confusion in an attempt to obtain a determination of her long-term disability claim as a result of the minutes of settlement, which were entered into prior to the commencement of the arbitration hearing set to deal with the denial of her long-term disability benefits claimed under the collective agreement. The plaintiff proceeded in the action on the presumption that the minutes of settlement disposed of her grievance as against her employer only and that she had a tenable action against the defendant.
[5] Further, there was some ambiguity with respect to the applicable terms in the collective agreement and the insurance policy obtained by the employer pursuant to the collective agreement.
[6] It is unfortunate that the plaintiff did not follow through with arbitration to deal with the denial of her long-term disability benefits, as originally framed. A decision lacking explanation, which effectively terminated any further recourse to seek reinstatement of long-term disability benefits, if entitled.
[7] In this instance the matter was of moderate complexity determined by an analysis and interpretation of the terms of the collective agreement and insurance policy. I am not persuaded that costs for examinations related to the motor vehicle accident giving rise to the plaintiff’s injuries, or that relate to a companion action as claimed by the defendant in its submission should be part of this costs award. The matter was either arbitral or it was not.
[8] In considering the appropriate amount in I also take into account the circumstances of the plaintiff.
[9] In exercising my discretion pursuant to s. 131 of the Courts of Justice Act and in consideration of the factors set out in Rule 57 of the Rules of Civil Procedure, I consider nominal costs in the amount $2,500.00 all in, to be fair and reasonable for the unsuccessful party to be paid in this matter.
[10] In the result, the defendant is awarded costs in the amount of $2,500.00 to be paid by the plaintiff within 30 days of the release of this endorsement.
A.J. O’Marra J. Date: February 21, 2019