Court File and Parties

Court File No.: CV-15-540887 Date: 2022-05-26 Superior Court of Justice - Ontario

Re: Abdullah Horani, by his Litigation Guardian, Rania Alsaman, and Rania Alsaman, personally, Plaintiffs And: Manulife Financial Corporation, Defendant

Before: Vermette J.

Counsel: David F. MacDonald, for the Plaintiffs David A. Zuber, for the Defendant

Heard: In writing

Endorsement as to Costs

[1] On April 19, 2022, I released an endorsement ordering the Defendant to answer two undertakings, granting leave to the Plaintiffs to amend their Amended Statement of Claim to increase the prayer for relief for damages, and dismissing the balance of the Plaintiffs’ motion (2022 ONSC 2350).

[2] The parties were not able to agree on costs and have delivered costs submissions.

[3] The Plaintiffs’ costs outline reflects costs on a partial indemnity basis in the amount of $46,082.02, and shows that the Plaintiffs’ lawyers spent 87.7 hours preparing for this motion. The Defendant’s costs outline reflects costs on a partial indemnity basis in the amount of $11,358.97, and shows that the Defendant’s lawyers spent 51.9 hours preparing for this motion.

Positions of the parties

a. Position of the Defendant

[4] The Defendant seeks its costs of the motion on a partial indemnity basis in the amount of $11,358.97.

[5] The Defendant submits that its request for costs is reasonable given that relief was granted to the Plaintiffs with respect to only two items, both of which were conceded by the Defendant, and all contested elements of the Plaintiffs’ motion were dismissed. The Defendant argues that the relief sought by the Plaintiffs constituted substantial and grossly disproportionate amendments and requests that were unreasonable to ask of the court at this stage of the proceeding.

[6] The Defendant’s position is that the Plaintiffs’ request for costs is inappropriate given the findings on the motion. It points out that although the Plaintiffs were not wholly unsuccessful in this motion, they were not successful on the majority of issues. The Defendant also submits that the Plaintiffs, in bringing the emergency motion weeks away from trial, threatened procedural efficiency and unnecessarily complicated proceedings. According to the Defendant, there are no circumstances where the Defendant paying costs for this motion brought by the Plaintiffs in the weeks and days leading to trial would be fair or just.

b. Position of the Plaintiffs

[7] The Plaintiffs seek their costs of the motion on a partial indemnity basis in the amount of $34,669.05. They point out that they were successful in obtaining an order for answers to undertakings and that the Defendant had opposed this request for relief. They note that two of the undertakings on which they moved were answered by the Defendant after the motion was brought and, with one exception, the remaining undertakings raised by the Plaintiffs on this motion were ordered to be answered. According to the Plaintiffs, they should not have been put through the unnecessary expense of bringing a motion for answers to undertakings.

[8] The Plaintiffs also point out that they were successful in obtaining an order granting leave to amend their Amended Statement of Claim to increase the prayer for relief for damages from $4 million to $7 million. They state that this 75% increase of the damages sought was important to the Plaintiffs and the Defendant opposed this request for relief, notwithstanding that it was ultimately conceded during oral submissions.

[9] With respect to the Plaintiffs’ request to abridge the time for service of an expert report, the Plaintiffs note that this request was deferred to the trial judge who would be in a better position to apply the legal test.

[10] The Plaintiffs state that, before bringing this motion, they sought to address the issues with the Defendant. However, the Defendant opposed all of the relief sought, despite admitting to no actual prejudice during oral submissions and conceding to the compensatory damages amendment during oral submissions and providing the answers to undertakings.

[11] The Plaintiffs argue that it is reasonable for the moving parties, i.e. the Plaintiffs in this case, to have spent more time preparing for the motion. They submit that since they were partly successful on the motion, their costs can be offset in part by the Defendant’s costs. For these reasons, they seek costs in the net sum of $34,669.05 (i.e. $46,028.02 minus $11,358.97).

Discussion

[12] While success on the motion was divided, I am of the view that, overall, the successful party was the Defendant. This is because the Plaintiffs were unsuccessful on the most contentious issues and the issues on which the most time was spent. While the Plaintiffs were successful with respect to some of the outstanding undertakings, they were not successful with respect to the undertaking on which the most emphasis was put on the motion (see paragraph 38 of my endorsement). Further, while the Plaintiffs were successful in obtaining leave to amend their Amended Statement of Claim to increase the prayer for relief for damages from $4 million to $7 million – a request that was not strongly opposed and eventually conceded at the hearing, they were unsuccessful in obtaining leave to add a claim for punitive damages in the amount of $2 million. The Plaintiffs were also unsuccessful with respect to their request for an order compelling the Defendant to produce a further and better affidavit of documents.[^1]

[13] In addition to the fact that the Defendant was successful on the issues that were the most important to the parties on the motion, I agree with the Defendant that the context in which the motion was brought – many years after the action was set down for trial and just a few weeks before the start of the trial – is a relevant consideration when determining what is fair and reasonable in the circumstances.

[14] While I conclude that the Defendant is entitled to costs and the Plaintiffs are not, a reduction must be applied to the amount sought by the Defendant to take into account the fact that it was not entirely successful. I agree with the Plaintiffs that while some points may have been conceded/answered after the motion was brought or at the hearing, the Plaintiffs should not have had to move on these issues and address them in their motion materials.

Conclusion

[15] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I find that the fair and reasonable award of costs in favour of the Defendant is on a partial indemnity basis in the all-inclusive amount of $8,000.00. In my view, this is an amount that the Plaintiffs should reasonably have expected to pay in the event that they were unsuccessful on their motion, especially in light of their own costs.

[16] Accordingly, I order that the Plaintiffs pay to the Defendant its costs of the motion in the all-inclusive amount of $8,000 within 30 days.

Vermette J.

Date: May 26, 2022

[^1]: For the purpose of determining costs, I consider the deferral of the request to abridge the time for service of an expert report to the trial judge to be a neutral factor as this issue was not decided.