Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JAYARAJ MADHAVARAJ, Plaintiff
AND:
SUN LIFE ASSURANCE COMPANY OF CANADA, Defendant
BEFORE: Schabas J.
COUNSEL: Andrew Monkhouse, Marissa Hum and Victoria Trasente, for the Plaintiff
Gabriel Flatt, for the Defendant
HEARD: In writing
COSTS ENDORSEMENT
1On January 28, 2026 I dismissed the defendant’s motion for summary judgment in this matter: Madhavaraj v. Sun Life Assurance Company, 2026 ONSC 553. I also dismissed the plaintiff’s “boomerang” motion for summary judgment. The parties have now filed costs submissions.
2The plaintiff seeks costs on a substantial indemnity basis in the amount of $65,543.00, comprising $46,368 in fees plus disbursements and HST. Alternatively, the plaintiff seeks costs on a partial indemnity basis of $48,078, all inclusive. The defendant says that it should be awarded costs of $12,199.69 including HST and disbursements, or, alternatively, no costs should be awarded.
3In my view the plaintiff was the successful party on this motion. The summary judgment motion was brought by the defendant and the plaintiff had to put his best foot forward to oppose it. Although this included a “boomerang” motion of his own, that did not add significantly to the work involved as the plaintiff would inevitably have had to put forward his extensive record to oppose the defendant’s motion.
4Under the Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 131(1), there is broad discretion in determining costs. Subrule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, lists factors to be considered. In addition, the court should have regard to the principle of proportionality and seek to balance the indemnity principle with the objective of facilitating access to justice.
5The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances: Boucher v. Public Accountants Counsel for Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
6The awarding of costs is not an exact science. As the overarching principle is that costs must be fair, reasonable, and proportionate, the court need not engage in an exact measure or detailed analysis of the dockets: Boucher, at para. 26; Harley v. Harley, 2023 ONSC 4611, at paras. 34-35; Bender v. Dulovic, 2023 ONSC 4753, at paras. 24-25; Persampieri v. Hobbs, 2018 ONSC 368, at para. 33, citing Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4; Brophy v. Harrison, 2019 ONSC 4377, at para. 15, citing Apotex Inc. v. Egis Pharmaceuticals (1991), 1991 2729 (ON CTGD), 4 O.R. (3d) 321 (C.A.)
7An award of costs on a substantial indemnity basis is exceptional. It may be justified when the conduct of the unsuccessful party in the litigation is considered reprehensible, egregious and worthy of sanction: Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.), at paras. 129-133.
8The impact of Rule 49 Offers to Settle must also be considered.
9Here the plaintiff offered to settle the motion on February 13, 2025, by allowing the defendant to withdraw its motion on a without costs basis. The impact of this, pursuant to Rule 49.10, is that 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.”
10The plaintiff also relies on Rule 20.06 which permits an award of substantial indemnity costs if the opposing party has “acted unreasonably by making or responding to the motion” or has “acted in bad faith for the purpose of delay.”
11Rule 20.06 has no application here. As Epstein J.A. stated in Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 45, “a distinction must be made between hard-fought litigation that turns out to have been misguided, on the one hand, and malicious counter-productive conduct, on the other.” The plaintiff’s complaints are in the former category. There is no basis to say that the defendant acted unreasonably in bringing the motion for summary judgment or in litigating the motion: Ashim v. Zia, 2015 ONSC 564 at para. 9.
12This was also not a “long shot” motion brought by a well-funded defendant that should be discouraged.
13Rule 49.10 supports substantial indemnity; however, Sun Life rightly submits that there is a legitimate coverage dispute in this case. The defendant also complains that it was the plaintiff’s lawyer who ran up costs, requiring unnecessary case conferences and bringing a boomerang motion seeking judgment for the plaintiff which put much more in issues.
14As stated earlier, I do not agree that the boomerang motion significantly increased the costs. On the other hand, the plaintiff’s offer to settle was more of an offer to capitulate than an offer of compromise which Rule 49 is intended to foster.
15At the end of the day, I must fix an amount that is fair and reasonable having regard to many factors, which I have referred to above. The amount should also be an amount which the unsuccessful party ought reasonably to have expected to pay if the motion was dismissed.
16There is a wide disparity between the two positions. This is explained, in part, by the fact that Sun Life was represented by in-house counsel asserting costs at a quite low notional rate. Further, unlike the plaintiff, it did not incur significant disbursements for medical evidence, which totalled over $10,000.
17Taking into account all the circumstances, I fix costs on a partial indemnity scale as requested by the plaintiff in the amount of $48,078, inclusive of HST and disbursements.
Paul B. Schabas J.
Date: April 10, 2026