Released April 4, 2016 | Full Decision [CanLII]
This was a costs assessment following a successful summary judgment motion by the defendant, CIBC, Plaintiff Glenda Bonilla’s employer and LTD provider. There was no issue that CIBC should receive costs for both the action and the motion. However, CIBC took the position that it was entitled to substantial indemnity costs on the basis of two Offers to Settle it had made.
By way of context, Ms. Bonilla commenced a “bad faith” proceeding against CIBC after it withheld a single month’s payment and refused to fund a treatment plan tailored to her needs.
The first Offer was served on May 13, 2014, and included a lump sum of $15,000 in exchange for a dismissal of the proceeding as against CIBC. Meanwhile, it continued to make monthly payment of the LTD benefit.
The second Offer was delivered after the Motion for Summary judgment had been served, on September 8, 2015. It offered a lump sum of $100,000 in exchange for, inter alia, the Plaintiff tendering her resignation.
Justice Diamond found that, had the first Offer remained open until the commencement of trial, then Rule 49.10 would have been invoked and substantial indemnity costs would have been appropriate. However, his Honour was not able to determine whether the second Offer of $100,000 in exchange for what amounted to a termination of the LTD policy was more advantageous to CIBC or not. As Ms. Bonilla continued to receive LTD benefits, there was no way to determine their future value.
As a result, Justice Diamond orders costs on a partial indemnity basis.
