



COURT OF APPEAL FOR ONTARIO

CITATION: Fehr v. Sun Life Assurance Company of Canada, 2018
    ONCA 874

DATE: 20181031

DOCKET: C61453, C61497 & C63532

Strathy C.J.O., Hourigan and Miller JJ.A.

BETWEEN

Eldon Fehr, Angela Watters, Gaetan Laurier,
Leslie Michael Lucas, James Patrick OHara,
Rebecca Jean Clark, and Lloyd Shaun Clark

Plaintiffs
(Appellants/Respondents by way of cross-appeal)

and

Sun Life Assurance Company of Canada

Defendant
(Respondent/Appellant by way of cross-appeal)

Won J. Kim, Michael C. Spencer, Megan B. McPhee, and
    Aris Gyamfi, for the appellants/respondents by way of cross-appeal

F. Paul Morrison, Dana M. Peebles, Glynnis P. Burt,
    Hovsep Afarian, and Jacqueline L. Cole, for the respondent/appellant by way of
    cross-appeal

Heard: January 16-18, 2018

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated November 12, 2015, with reasons reported at
    2015 ONSC 6931, 56 C.C.L.I. (5th) 15 and additional reasons reported at 2016
    ONSC 455; and from the order dated December 7, 2016, with reasons reported at
    2016 ONSC 7659, 62 C.C.L.I. (5th) 96; and from the order dated April 11, 2017,
    with reasons reported at 2017 ONSC 2218; 66 C.C.L.I. (5th) 201.

COSTS ENDORSEMENT

[1]

These reasons address the costs of the motions for certification and
    summary judgment in the Superior Court and the costs of the appeal to this
    court.

[2]

In the Superior Court, the plaintiffs were ordered to pay costs of $1
    million following their unsuccessful certification motion and their
    substantially unsuccessful defence of the defendants summary judgment motion.

[3]

The plaintiffs came to this court without a certified class action and
    with their individual claims either wholly or partially dismissed as
    time-barred.

[4]

They left this court with a certified class action with respect to some,
    but not all of their claims. Their claim for negligent misrepresentation, which
    was the focus of much of the appeal, was not certified.

[5]

The plaintiffs also left this court with some of their individual claims
    alive, but potentially time-barred, an issue to be determined at a later date.

[6]

The plaintiffs seek costs of $1.3 million for the certification and
    summary judgment motions in the court below and $200,000 for the costs of the
    appeals.

[7]

Sun Life submits that it should be entitled to costs of $500,000 with
    respect to the certification motion, on the basis that it was the successful
    party on the more substantial part of the claim. It also submits that there
    should be no costs of the appeal as success was divided.

[8]

In our view, there is no basis on which to deprive the plaintiffs of
    costs in either respect. Their success in having the action certified on some
    common issues and in reversing summary judgment should be reflected in an
    appropriate award of costs. In our view, $600,000 inclusive of disbursements
    and all applicable taxes would be a fair and reasonable award, in respect of
    the costs in the court below.

[9]

Similarly, while success was divided on the appeal, there is no question
    that the plaintiffs ended up significantly better off and the defendant worse
    off. The plaintiffs are entitled to their costs of the appeal fixed at
    $100,000, inclusive of disbursements and all applicable taxes.

[10]

Order
    accordingly.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

B.W. Miller J.A.


