Ontario Civil


Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Insureds’ success in having action certified on some common issues should be reflected in appropriate award of costs

Plaintiff insureds alleged defendant insurer breached provisions relating to cost of insurance (COI) and administrative fee. Motion judge dismissed insureds’ motion for certification of action as class proceeding. Insurer’s unsuccessful summary judgment motion demonstrated that class action was woefully deficient and could not be certified. Motion judge awarded insurer costs of one million dollars on partial indemnity basis. Court of Appeal partially allowed insureds’ appeals. Court of Appeal certified class action with respect to some claims and allowed issue of whether some individual claims were time-barred to be determined at later date. Parties made submissions on costs, with insureds seeking $1.3 million for certification and summary judgment motions and $200,000 for costs of appeals, and insurer seeking $500,000 with respect to certification motion. Insureds were awarded $600,000 inclusive in respect of costs in court below. There was no basis on which to deprive insureds of costs. Insureds’ success in having action certified on some common issues and in reversing summary judgment should be reflected in appropriate award of costs. While success was divided on appeal, insureds ended up significantly better off and insurer worse off.

Fehr v. Sun Life Assurance Company of Canada (2018), 2018 CarswellOnt 18080, 2018 ONCA 874, G.R. Strathy C.J.O., C.W. Hourigan J.A., and B.W. Miller J.A. (Ont. C.A.); additional reasons (2018), 2018 CarswellOnt 14508, 2018 ONCA 718, George R. Strathy C.J.O., C.W. Hourigan J.A., and B.W. Miller J.A. (Ont. C.A.).

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