COURT FILE NO.: CV-20-82562-00CP
DATE: 2022/09/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Giulia Belec
Plaintiff/Moving Party on Certification Motion
– and –
Sun Life Assurance Company of Canada
Defendant/Moving Party on the Summary Judgment Motion
Joseph Obagi and Elizabeth Quigley, for the Plaintiff
Linda Plumpton, David Outerbridge, and Shalom Cumbo-Steinmetz, for the Defendant
HEARD: In Writing
DECISION ON COSTS
R. Smith J.
Overview
[1] The Plaintiff, Giulia Belec, (“Ms. Belec”) seeks costs of $374,732.22 on a partial indemnity scale for her successful motion to certify her action as a class proceeding and for successfully opposing Sun Life’s motion for summary judgment.
Positions
[2] Sun Life submits that it was successful in defeating Ms. Belec’s argument for a reverse summary judgment, and Ms. Belec was successful in defeating Sun Life’s motion for summary judgment; therefore, neither party should be awarded any costs for their summary judgment motions or alternatively, costs for the time spent on the summary judgment motion should be in the cause.
[3] Secondly, Sun Life submits that the bulk of the time was spent on the summary judgment motion as compared to the motion for certification; therefore, the amount of costs awarded should be reduced.
[4] Finally, although certification as a class proceeding was granted, the size of the class was narrowed by removing statute barred claims, the number of common issues were reduced from six to one, and the issue of punitive damages was not certified. Sun Life submits that the sum of $50,000 should be awarded for costs.
[5] Ms. Belec submits that Sun Life did not challenge the hourly rates or the time spent by the Plaintiffs on these motions and did not argue that the amount claimed was not reasonably expected (Boucher). Ms. Belec submits that she was successful on both her certification motion and in defending against Sun Life’s motion for summary judgment. As a result, she submits that she should be awarded costs for the time spent on both motions.
[6] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, RRO 1990, Reg 194 and include, in addition to success, the complexity and importance of the matter, the principle of indemnity, the hourly rate claimed, the time spent and the amount that a losing party would reasonably expect to pay. Additional factors are that Sun Life was successful in opposing the Plaintiff’s submissions for a reverse summary judgment, in narrowing the class definition, and in reducing the number of common issues certified.
Success
[7] The Plaintiff was successful on her motion to certify the action as a class proceeding and she successfully opposed Sun Life’s motion for summary judgment.
[8] In the revised submissions by the Plaintiff, the number of common issues were reduced from initially six to two common issues. The substance of the common issues was not changed as the issue remained the same namely, to determine the correct interpretation of the long-term disability policy and how to apply the indexing provisions of the policy.
[9] The class definition was amended to limit the number of claimants to those individuals that were within the 15 year ultimate limitation period. However, Sun Life did not disclose its estimate of the size of the proposed clan as required by s. 5(3) of the Class Proceedings Act, 1992, S.O. 1992, c. 6. As a result, the impact on the size of the class is still unknown as many long term disability claimants may have continued to receive indexed disability benefits within the 15 year ultimate limitation period.
[10] I find that the Plaintiff was substantially successful in obtaining certification as a class proceeding to decide the common issue of the correct interpretation and application of the indexing provisions of Sun Life’s long term disability policy. The Plaintiff did not refer to the issue of punitive damages in her factum for certification or for summary judgment and very little time was spent on this issue.
[11] The Plaintiff was completely successful in opposing Sun Life’s motion for summary judgment. Sun Life had outlined and compared the two possible methods of interpreting and implementing the indexing of the LTD benefits. Sun Life sought a summary judgment in accordance with its interpretation. Ms. Belec argued that the second method of calculating the indexing should be adopted by the court and that she should be granted a reverse summary judgment. Ms. Belec submits that minimal additional costs were incurred by her request to grant her a reverse summary judgment in addition to opposing Sun Life’s interpretation and method of implementing the indexing provisions.
[12] The Court of Appeal in Graham v. Toronto (City), 2022 ONCA 149 confirmed that the court can grant a reverse summary judgment on a motion for summary judgment even without the request of parties. The Plaintiff submits that her request for a reverse summary judgment in her favour, without bringing a motion for summary judgment, should not deprive of her of her presumptive entitlement to costs for successfully opposing Sun Life’s summary judgment motion.
Complexity and Importance
[13] The matters were complex and very important to both parties as the claim may be substantial, depending on the number of long-term disability claimants involved.
Hourly Rates and Time Spent
[14] Sun Life has not challenged the hourly rates or the number of hours spent on the two motions. I agree with the Plaintiff’s submission that very little extra time was spent on her request for a reverse summary judgment as two alternative interpretations of the policy to implement indexing were put forward by the parties. If Sun Life’s interpretation of the policy had been accepted, Ms. Belec’s case would have been dismissed.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[15] In Boucher, the Court of Appeal held that the amount the unsuccessful party would reasonably expect to pay is a very important factor. Sun Life has not provided me with a costs outline or a bill of costs and does not argue that the hourly rates or time spent were excessive. Sun Life had four lawyers involved in this matter and I find the Plaintiff’s hours and rates to be reasonable in the circumstances.
[16] The case of Austin v. Bell Canada, 2020 ONCA 6310 involved a certification motion and a motion for summary judgment with similar circumstances, The Court of Appeal of Ontario overturned the motion judge’s costs award of $271,199.57 inclusive of HST and substituted an award of costs of $472,500.
[17] The case of Fehr v. Sun Life Assurance Company of Canada, 2017 ONSC 2218 involved a motion for certification and a motion for summary judgment. Sun Life lost the summary judgment motion but was successful in defending the certification motion which was considered a strategic success. Sun Life claimed costs of $2,51,777.07 and the Court of Appeal of Ontario awarded $600,000 in costs. In both the Fehr and Austin cases, costs were awarded by the Court of Appeal of Ontario in excess of the $374,000 claimed by the Plaintiff.
[18] As a result, if unsuccessful, Sun Life would reasonably have expected to pay costs in the amount claimed by the Plaintiff of $374,000 as a result of being unsuccessful on both motions.
Disposition
[19] For the above reasons, Sun Life is ordered to pay costs of $300,000 plus HST plus disbursement inclusive of HST of $13,476.31, reduced slightly from the amount claimed for the lack of success on her request for a reverse summary judgment.
Mr. Justice Robert Smith
Date: September 7, 2022
COURT FILE NO.: CV-20-82562-00CP
DATE: 2022/09/07
ONTARIO
SUPERIOR COURT OF JUSTICE
Giulia Belec
Plaintiff/Responding Party
– and –
Sun Life Assurance Company of Canada
Defendant/Moving Party
DECISION ON COSTS
Justice Robert Smith
Released: September 7, 2022