advantage of a clerical error in the policy. Further, Manulife
submitted that Mr. Alguire’s allegations of a breach of the duty
of good faith were akin to failed allegations of fraud or other
[ 38] The trial judge agreed with Manulife that this case was
one of those rare instances where a party’s conduct ought to be
chastised by the court through a costs award on a higher scale.
He found that Mr. Alguire’s story lacked any air of reality and
that his version of events never took place. According to the trial
judge, his “decision went beyond the standard ‘battle of credibility’ between parties”.
[ 39] In determining quantum, the trial judge acknowledged
that he must take into account what is fair and reasonable, with
a view to balancing compensation for the successful party with
the goal of fostering access to justice: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291,
 O.J. No. 2634 (C.A.), at paras. 37-38. He noted that he
should be wary of the negative impacts on access to justice that
could result from substantial costs awards against individuals
involved in proceedings against well-funded corporations. The
trial judge excluded from the costs award the costs of a mid-trial
motion brought by Manulife that Mr. Alguire successfully
resisted. He also found that some of the hourly rates sought by
Manulife’s counsel were unreasonable. The $1,250,000 awarded
marked a significant reduction from the amount sought in Manulife’s bill of costs, being $2,270,160.
[ 40] In my view, there is no basis to interfere with the costs
award and accordingly I would deny leave to appeal.
[ 41] The trial judge was entitled to consider Mr. Alguire’s conduct and determine whether it was worthy of sanction: Davies v.
Clarington (Municipality) (2009), 100 O.R. (3d) 66,  O.J. No.
4236, 2009 ONCA 722, at para. 28. I see no error in his conclusion
that this was an exceptional case where elevated costs were
appropriate. As the trial judge rejected Mr. Alguire’s version of
events, it follows that he concluded Mr. Alguire fabricated his testimony to fit his claim for the increased paid-up values found on
p. 3 of the policy. The awarding of costs on a higher scale was
therefore not, to use Mr. Griffin’s phrase, a case of “piling on”, but
rather a response to conduct worthy of judicial sanction.
[ 42] I also do not accept the submission that the costs award
will have an adverse impact on access to justice. This is not
a case of an earnest policyholder asserting a claim under an
insurance policy in good faith. This is a case where Mr. Alguire
has been found to have fabricated evidence. Obviously, cases
brought in bad faith should be discouraged, if for no other reason