The Estate of David Peters v. Great-West Life Assurance Company, 2022 NSSC 353

SUPREME COURT OF Nova Scotia Citation: The Estate of David Peters v. Great-West Life Assurance Company , 2022 NSSC 353 Date: 20221206 Docket: Hfx No. 457848 Registry: Halifax Between: The Estate of David Peters and Susan Peters Plaintiffs v.

Great-West Life Assurance Company, Sun Life Assurance Company of Canada and London Life Insurance Company Defendants DECISION ON COSTS Judge: The Honourable Justice Peter Rosinski Heard by written submissions only: Halifax, Nova Scotia Decision: Counsel: December 6, 2022 Stephen Johnston and David Parker, for the Plaintiffs Scott McTaggart, for the Defendants By the Court: Introduction [ 1 ] Mr. Peters was fatally injured in an incident at work on November 23, 2015. He had $375,000 insurance available to be paid out in case of an accidental death. In my decision, The Estate of David Peters v.

Great-West Life Assurance Company, 2022 NSSC 193 , I concluded that as of July 9, 2020, the defendants had received satisfactory proof that Mr. Peter’s death was accidental, thus triggering their obligation to pay the benefits within 30 days. [ 2 ] The benefits were not paid until December 7, 2021. Thereafter, the parties could not agree upon prejudgment interest. The Estate of Mr. Peters and Mrs.

Peters made a motion seeking the court order the defendants to pay prejudgment interest at the rate of 5% per year on these liquidated damages on the total policy amount of $375,000 from September 20, 2016, when the claim was initially denied, to December 7, 2021. [ 3 ] Both the appropriate interest rate and duration over which it should have been payable were in issue in the motion. I concluded

that 5% was the proper interest rate, and that the duration of prejudgment interest should be from 30 days after July 9, 2020, until December 7, 2021. [ 4 ] The parties differed on the issue of costs of the motion hearing. This decision addresses that issue. Position of the parties [ 5 ] The Estate argues that I should order the defendants to pay it $3000. This amount arises from Tariff C for a half day hearing which contemplates costs between $750 and $1000.

The Estate argues that: the Tariff multiplier should be applied (because my decision was determinative of the entire matter at issue and, for the effort involved in preparing for the motion); and that the base amount should be multiplied by four resulting in a total of $3000. [ 6 ] The Estate further argues that the amount of prejudgment interest should be based on the duration between September 20, 2016, (initial denial of claim) and December 7, 2021, (payment of claim: $375,000). [ 7 ] The defendants argue that I should order the plaintiffs to pay them a lump-sum award of $5000 (see Justice Ann Smith’s reasons in Tri-Mac Holdings Inc. v Ostrom , 2019 NSSC 44 ).

They say the Tariff will not adequately serve the principle of substantial, but not complete indemnity for legal fees, and rationalize their position on the following bases: (

a) the adjudication of the issue in dispute was made much more complex by the plaintiffs’ assertion that the defendants had breached the duty of good faith, inadequately handled the claims, or introduced improper considerations into the claims process; (

b) the issue in dispute was one of importance to the parties; (

c) the issue in dispute was also of significant importance in the context of reliance by insurers generally on medical examiner determinations on cause of death and what constitutes sufficient evidence to satisfy contractual and statutory provisions regarding the proof required to establish the cause of death. (

d) the amount of effort involved (was extraordinary because of factors a, b and

c) which was also increased based on the plaintiffs’ steadfast refusal until June 13, 2022, just three days before the hearing, to allow virtual attendance by Wendy Stockford who lives and works in Ontario; (

e) the amount of effort involved in preparing for and attending at the motion was significantly increased by the plaintiffs’ insistence on cross-examining Wendy Stockford on her affidavit. Nothing of substance was achieved on the cross examination. [ 8 ] They say that an additional factor of importance is the defendants’ offers to settle this matter in advance of the hearing. What is a proper award of costs in the circumstances? [ 9 ] Firstly, my view is that there was mixed success. The plaintiffs sought 5% prejudgment interest from September 20, 2016, to December 7, 2021.

I found that they were entitled to 5% prejudgment interest from July 9, 2020, to December 7, 2021.

The defendants had argued that 2.45% prejudgment interest should be payable from July 9, 2020, to December 7, 2021. [ 10 ] Secondly, in relation to the evidence regarding the history of settlement offers, which were not formal offers under Rule 10, they go into the mix; however they are generally not determinative because until my July 6, 2022 decision there were ongoing legitimate disagreements about relevant factors such as the rate of interest and duration for which prejudgment interest should be payable, and the facts in issue otherwise. [ 11 ] Having said that, I acknowledge that on March 30, 2022 (and reinstated on June 14, 2022) the defendants had offered 5% prejudgment interest from July 1, 2020, to December 1, 2021. [ 12 ] The motion was not “determinative of the entire matter at issue in the proceeding” as contemplated by the language of Tariff C.

The accidental death payments were paid December 7, 2021. In no meaningful sense were they still in issue. [ 13 ] Tariff C presumptively applies – CPR 77.05. [1] This motion was an interlocutory, albeit final, step in the proceeding. Costs and disbursements have already been paid by the defendants to the plaintiffs on March 8, 2022 (para. 14, Gilmor supplementary affidavit, filed September 9, 2022). [ 14 ] CPR 77.07 permits me to add or subtract amounts from tariff costs. [ 15 ] I am satisfied that the defendants should have recognized their obligation to pay out the accidental death benefits as of July 9, 2020.

Their failure to do so until December 7, 2021, prolonged the litigation. [ 16 ] On the other hand, the plaintiffs should have recognized as reasonable, the defendants’ March 30, 2022, offer; 5% prejudgment interest from July 1, 2020, to December 1, 2021). Conclusion [ 17 ] Ultimately, costs awards should be just and appropriate in the circumstances. I reject the defendants’ claim for costs to be paid to them. I reject the plaintiff’s claim for costs to be paid to them. All parties shall bear their own costs. [ 18 ] I direct that the plaintiffs prepare an order to address my disposition of the motion and costs.

Rosinski, J.