Court File and Parties
COURT LOCATION: Thunder Bay
COURT FILE NO.: CV-16-0507-00
DATE: 2022-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EMMA SHWALUK
Sabrina A. Lucenti, Agent for the Plaintiff
Plaintiff
- and -
HSBC BANK OF CANADA and SUN LIFE ASSURANCE COMPANY OF CANADA
Helen D.K. Friedman, for the Defendant, Sun Life Assurance Company of Canada
Defendants
HEARD: via written submissions
Regional Senior Justice B. R. Warkentin
Reasons on Costs
[1] In paragraph 41 of my reasons dated May 30, 2022, I dismissed the plaintiff’s motion to amend her pleadings and directed the parties to make written submissions on costs within 30 days if they were unable to resolve the issue of costs.
[2] Counsel for the defendant, Sun Life Assurance Company of Canada (the “defendant”) is seeking partial indemnity costs inclusive of HST and disbursements in the amount of $30,000.00 for the plaintiff’s motion that was originally returnable on December 10, 2021 and the amount of $7,000.00 in costs of the motion heard on February 16, 2022 for total costs inclusive of HST and disbursements of $37,000.00.
[3] Counsel for the plaintiff argued that the amount claimed by counsel for the defendant is excessive for this motion and proposed an award in the amount of $20,000.00, inclusive of HST and disbursements.
Background
[4] The plaintiff commenced a motion to amend her reply to the defendant’s statement of defence. That motion was returnable on December 10, 2021. I provided oral reasons dismissing that motion as being procedurally improper, without prejudice to the plaintiff to seek to amend her statement of claim. I provided the parties with an endorsement as follows:
- This was a motion by the plaintiff seeking leave to amend their Reply to the Statement of Defence of the defendant, Sun Life. The action as against HSBC has been settled.
- For oral reasons given, the motion is dismissed without prejudice to the plaintiff to amend their Notice of Motion to seek leave to amend their Statement of Claim.
- If the plaintiff pursues this motion, the matter should be returned before me since I have already reviewed most of the material in the present motion. All the current motion material may be maintained and only such additional material as required to address a motion for leave to amend the Statement of Claim, including supplementary facta need be filed.
- Costs of today’s motion and the motion seeking leave to amend the Statement of Claim shall be heard together.
[5] The plaintiff pursued a motion to amend her statement of claim. That motion was heard on February 16, 2022 and dismissed with written reasons on May 30, 2022.
[6] Counsel for the defendant argues that it should be awarded costs for both motions and in their submissions has set out the costs incurred. Counsel for the plaintiff agrees that costs should be awarded for both motions, however, argued that they should not be treated separately, but as one proceeding.
[7] I agree with plaintiff’s counsel that only one order for costs is appropriate. My endorsement was clear that the issue of costs was to be heard together. In making the costs award, however, I agree with defence counsel that the issues raised in the second motion required the defence to review the proposed amendments to the statement of claim by the plaintiff and respond to new arguments that had been advanced. This resulted in an increase in time expended and costs incurred.
Awarding Costs
[8] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[9] Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.
[10] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (Ont CA) at para 37).
[11] This case was somewhat unique. The plaintiff’s first motion was to amend their reply to remove admissions that had been made in reply. I found that approach was improper and provided the plaintiff with the opportunity to amend their statement of claim, which would have afforded the defence to respond in an amended statement of defence.
[12] This matter was also complex. It involved a significant review of relevant law pertaining to the Rules permitting amendments to pleadings; withdrawing admissions; the nature of the pleadings sought to be amended and whether those proposed amendments raised new causes of action that were statute barred.
[13] I have reviewed the Bills of Costs submitted by counsel for the defendant and compared those with that submitted by counsel for the plaintiff. The plaintiff’s Bill of Costs for both motions indicated their costs on a full indemnity basis were $32,104.65. The defendant’s Bills of Costs for both motions on a full indemnity basis totaled $61,563.93 . The defendant’s costs are nearly double those of the plaintiff.
[14] The defendant seeks partial indemnity costs in the amount of $37,000. This amount is greater than the plaintiff’s full indemnity costs and cannot be justified, notwithstanding the complexity of the motions.
[15] The plaintiff’s costs on a partial indemnity basis were $19,736.34.
[16] I therefore award costs to the defendant payable by the plaintiff in the amount of $22,000.00 inclusive of HST and disbursements for both motions.
Regional Senior Justice B. R. Warkentin
Released: October 25, 2022
COURT FILE NO.: CV-16-0507-00
DATE: 2022-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EMMA SHWALUK
Plaintiff
– and –
HSBC BANK OF CANADA and SUN LIFE ASSURANCE COMPANY OF CANADA
Defendants
REASONS ON COSTS
Warkentin RSJ.
Released: October 25, 2022