Court File and Parties

Court File No.: CV-19-613345 Date: 2020/01/15 Ontario Superior Court of Justice

Between: Randolph Burns, Plaintiff And: RBC Life Insurance Company, Lauren McLean and Anna Oslizlok, Defendants

Counsel: Deanna Gilbert for the Plaintiff Barry G. Marta for the Defendants

Heard: In writing

Perell, J.

Reasons for Decision - Costs

[1] The Plaintiff, Randolph Burns, had a disability benefits insurance contract with the Defendant, RBC Life Insurance Company. The Defendants, Lauren McLean and Anna Oslizlok, were the employees of RBC Life that administered Mr. Burn’s disability claim. Mr. Burns’ disability claim was denied, and in this action, he sues RBC Life, Ms. McLean, and Ms. Oslizlok.

[2] Ms. McLean and Ms. Oslizlok brought a motion for an Order striking out the claim against them for failing to disclose a reasonable cause of action. Their motion was successful. [1] Argued at the same time, there was also a motion with respect to the order of examinations. RBC Life, which was represented by the same lawyers as Ms. McLean and Ms. Oslizlok, sought an Order that Mr. Burns’ examination for discovery proceed first before the examination of RBC Life’s representative witness. RBC Life’s motion was also successful.

[3] On a partial indemnity basis, RBC Life, Ms. McLean, and Ms. Oslizlok seek costs of $7,108.52 comprised of fees of $6,575.72, inclusive of HST, and disbursements $532.80 for both motions.

[4] Mr. Burns’ comparative Bill of Costs had he succeeded on the motions totals $7,437.79.

[5] Although the Defendants’ claim for costs is only slightly less than Mr. Burns’ claim would have been, Mr. Burns submits that the appropriate costs award in the circumstances of this case is $2,265.00. He submits that: some portions of the motions were uncontested; the Defendants spent a disproportionate amount of time compared to the work product produced; and the Defendants were unreasonable in the discussions about settling costs.

[6] Mr. Burns summarized his costs submission as follows: In summary, Mr. Burns submits that based upon the relative docketed time to the work produced and the experience of counsel, a costs award of $3,021.66 would be appropriate. However, given that the Defendants were unwilling to engage in reasonable settlement discussions to avoid further incurring costs preparing these submissions and to avoid spending more of this Honourable Court's time, Mr. Burns submits that a 25% reduction ought to apply, resulting in a costs award to the Defendants in the amount of $2,265.00.

[7] I am not persuaded by Mr. Burns’ submissions. In my opinion, the motions were important motions for both sides and capably argued by both sides. That the page length of the Defendants’ affidavits and factums was less than Mr. Burns’ is not a negative measure of their lawyer’s work effort. As Mark Twain and Winston Churchill and other have noted, it takes more time to write clearly and succinctly, and in the case at bar given their success, it seems that the Defendants’ materials were as long as they needed to be.

[8] The costs of the two motions in the immediate case should follow the event, and the costs should be fair and within the reasonable expectations of the losing party. In my opinion, the appropriate costs award for both motions is, therefore, $6,000, all inclusive.

[9] Order accordingly.

Perell, J. Released: January 15, 2020

Footnote: [1] Burns v. RBC Life Insurance Co. , 2019 ONSC 6977