Executive Summary: Key Legal and Evidentiary Issues

• The Manulife Defendants sought partial summary judgment to strike several claims brought by Dr. Justin L. Paletz.

• A Consent Order was reached before the scheduled hearing, resulting in the dismissal of some claims and preserving the Manulife Defendants’ right to bring further motions.

• The parties disagreed on costs, with the Manulife Defendants seeking $2,000 and the Plaintiff arguing each party should bear their own costs due to mixed success and cooperation.

• The Court considered the general discretion to award costs, the partial offer to settle, and the efforts expended by both parties in preparing for the motion and settlement.

• The Court found the Manulife Defendants to be the more successful party, despite not achieving all relief sought.

• Costs of $1,250 were awarded in favour of the Manulife Defendants against the Plaintiff, considering the estimated hearing time and the cooperation in reaching a settlement.

Background and motion for summary judgment

Dr. Justin L. Paletz brought claims against Barrington Wealth Partners Inc., BWP Advisory Services Inc., Manulife Financial, The Manufacturers Life Insurance Company, Manulife Securities Investment Services Inc., Edward J. Lapointe, and Kelly Adams. The Manulife Defendants moved for partial summary judgment regarding several claims made by the Plaintiff. A full day was set aside for the hearing, but about a week before the scheduled date, the parties reached a settlement. The court was notified, and a Consent Order was filed, avoiding the need for an appearance. The Consent Order did not grant all relief sought by the Manulife Defendants but resulted in the striking of a number of the Plaintiff’s claims, while preserving the Manulife Defendants’ ability to bring further summary judgment motions on other claims.

Terms of the consent order and positions on costs

The Consent Order included a provision that costs would be determined by agreement or, failing that, by written submissions within 30 days. The parties could not agree, so written submissions were filed.

The Manulife Defendants, through counsel Colin D. Piercey, K.C., sought costs of $2,000 from the Plaintiff, referencing Tariff C of Rule 77 – Costs for motions requiring more than ½ day but less than 1 day ($1,000–$2,000). They argued that the amount could be seen as a multiplier of 2 on a baseline costs award of $1,000, as the Consent Order was determinative of several claims. The Manulife Defendants pointed to their partial success, noting that the Consent Order resulted in the dismissal of the Portus claims and a partial dismissal of claims relating to the Universal Life Insurance Policy and the Manulife Securities Investment Services Inc. Mutual Fund Accounts. They also referenced a formal partial offer to settle dated February 11, 2025, which the Plaintiff did not accept, but which would have resulted in a similar outcome.

The Plaintiff, represented by Barry J. Mason, K.C., submitted that the parties should bear their own costs due to mixed success and the cooperation in reaching the Consent Order. The Plaintiff noted that claims related to Portus Investments and claims of negligence, breach of contract, and vicarious liability were struck, but the claim for breach of fiduciary duty was maintained. Plaintiff’s counsel argued that the Tariff amounts should not apply since no hearing occurred and emphasized the ongoing cooperation. Regarding the partial offer to settle, Plaintiff’s counsel pointed out that the offer could be accepted “anytime before trial begins,” and the trial had not yet started when the Consent Order was reached.

Court’s analysis and decision

The Court recognized its general discretion to make any order about costs that will do justice between the parties, as provided by CP Rule 77.02(2) and CP Rule 77.02(1). The Court noted that both sides expended considerable time and effort in preparing for the motion and reaching a settlement, but this did not preclude an award of costs.

The Court found that costs are normally awarded to the successful party, and in this case, the Manulife Defendants were the successful parties, having achieved considerable success, even if not all relief was granted. The Court did not accept the Plaintiff’s argument that mixed success should result in no costs award. The Court was also not persuaded that the ongoing acceptance period for the partial offer to settle should deny the Manulife Defendants their entitlement to costs, as the agreement was only reached after the motion and supporting documents were filed and most expenses had been incurred.

To do justice between the parties, the Court awarded costs of $1,250 in favour of the Manulife Defendants against the Plaintiff, considering Tariff C and the estimated time set for the hearing, even though no appearance was required. The Court also considered the cooperation in reaching an agreement and indicated that, without such cooperation, a higher amount might have been awarded. The Court directed Mr. Piercey, K.C. to prepare a revised Order and seek Mr. Mason, K.C.’s consent as to form.

The successful party for the purpose of costs was the Manulife Defendants, and the Plaintiff was ordered to pay $1,250 in costs.