Court File and Parties

COURT FILE NO.: 05-047/18

DATE: 20230208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHIRANEE ARULDASON, SHEREENA ARULDASON, JOHN ARULDASON, Applicants

AND:

SUN LIFE FINANCIAL INC., SAROJINI RAJARATNAM and KANAGASABAI RAJARATNAM, Respondents

BEFORE: Dietrich J.

COUNSEL: Rob Levesque, for the Applicants

Amiri M. Dear, for the Respondents Sarojini Rajaratnam and Kanagasabai Rajaratnam

HEARD: In writing

COSTS ENDORSEMENT

[1] In my decision in this application, I invited counsel to make submissions with respect to the matter of costs.

[2] The issue to be determined on the application was whether the proceeds of a life insurance policy owned by the late Jaya Ranjit Aruldason (the “Deceased”) were payable to the applicant, Shiranee Aruldason (the “Deceased’s wife”) or to the Respondents, Sarojini Rajaratnam and Kanagasabai Rajaratnam, the Deceased’s landlords (the “Respondents”). The Respondents were the last designated beneficiaries on the policy. The other applicants, Shereena Aruldason and John Aruldason (the “Deceased’s children”) took the position that if the applicants were successful, the whole of the proceeds ought to be paid to their mother, the Deceased’s wife. I found that the proceeds were payable to the Deceased’s wife.

[3] The applicants submit that they were completely successfully in obtaining an order that the proceeds be paid to the Deceased’s wife.

[4] Rule 57 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194 (the “Rules”) sets out the factors the court may consider when fixing costs between parties to the litigation. These factors include the complexity of the proceeding, and the importance of the issues. Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that the court may determine by whom and to what extent costs shall be paid.

[5] Rule 49.10(1) provides that where an offer is made pursuant to this section, and the plaintiff obtains a judgment as favourable or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

[6] The usual rule is that costs follow the event, and the successful party should be awarded its costs.

[7] The applicants submit that the amount in dispute was relatively modest. Nonetheless, receiving the proceeds was very important to the Deceased’s wife given the amount of debt she had incurred, including by assisting the Deceased’s children in pursuing their university education. The applicants further submit that any reduction in the proceeds as a result of costs that the Deceased’s wife is required to pay counsel will have a negative impact on her.

[8] The applicants attempted to resolve the dispute through mediation but did not succeed. Thereafter, on December 17, 2019, they made an offer pursuant to r. 49.10 to settle with the Respondents.

[9] Based on the judgment they received, they beat their offer. Rule 49.10 would, therefore, entitle them to substantial indemnity costs from the date of the offer.

[10] The applicants seek their costs from the Respondents in the amount of $26,568.93, comprised of partial indemnity costs of $13,399.54 up to December 17, 2019; substantial indemnity costs of $12,373.60 from December 17, 2019 forward; and disbursements of $795.79.

[11] The Respondents submit that there should be no costs payable on the application because the application was brought in the names of three applicants, relief was sought on behalf of all three, they all participated in the mediation, and the Deceased’s children never discontinued their claim. The Respondents rely on r. 38.08, which provides that where an application is abandoned or deemed to have been abandoned, a respondent is entitled to the costs of the application, unless the court orders otherwise.

[12] I do not agree that no costs should be awarded to the applicants, who were clearly successful in the application. I do not find that the Deceased’s children abandoned the application. They did concede that if they were successful, the proceeds should be payable to the Deceased’s wife.

[13] A reduction in the costs award may have been appropriate if the Respondents had spent time defending the claims of the Deceased’s children. However, neither of the Deceased’s children swore an affidavit in the proceeding, and neither was examined. I do not find that court time or resources were “thrown away” such that any reduction to the costs award can be justified on this basis.

[14] The Respondents also submit that the costs sought by the applicants are both “unreasonable and grossly inflated”. I disagree. The applicants’ costs, as shown on their costs outline, are higher than those shown on the Respondents’ costs outline. However, the applicants had the onus to prove that the Respondents were not entitled to the proceeds despite their position as the last designated beneficiaries. Conversely, the Respondents relied principally on the latest beneficiary designation made by the Deceased.

[15] For the foregoing reasons, I fix the costs to be paid by the Respondents to the applicants in the total amount of $26,568.93, consisting of partial indemnity costs of $13,399.54 up to December 17, 2019; substantial indemnity costs of $12,373.60 from December 17, 2019 forward; and disbursements of $795.79.

[16] These costs shall be paid within 30 days.

Dietrich J.

Date: February 8, 2023