DIVISIONAL COURT FILE NO.: 364/06
SUPERIOR COURT FILE NO.: 40518/02
DATE: 20070523
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: DANIEL E. MacDOUGALL, ARTHUR J. TIERNAY, ANGUS BAKER, MALCOLM KERR, CLIFFORD McCAUL and GARY BESSERER Plaintiffs/Appellants
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THE ONTARIO NORTHLAND TRANSPORTATION COMMISSION and THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA AND ITS LOCAL 103 (the "CAW") and BRIAN STEVENS on his own behalf and on behalf of the Employees of the Defendant, the Ontario Northland Transportation Commission ("ONTC") represented by the CAW; and
THE UNITED TRANSPORTATION UNION ("UTU") and PHILIP KONING, on his own behalf and on behalf of all members of the UTU and ITS LOCAL 1161 employed by the Defendant ONTC; and
THE BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES ("BMWE") and RICHARD PAULIN on his own behalf and on behalf of all Members of the BMWE and its LOCALS 3 and 2697 employed by the Defendant ONTC; and
THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS-SYSTEM COUNCIL NO. 11 LOCAL 2061 ("IBEW") and GORDON LOUTTIT on his own behalf and on behalf of all members of IBEW – SYSTEM COUNCIL NO. 11, LOCAL 2061 employed by the Defendant ONTC, and
THE UNITED STEEL WORKERS OF AMERICA and its LOCAL 1976 ("USWA LOCAL 1976") and RON MARLEAU on his own behalf and on behalf of all members of the USWA, Local 1976 employed by the Defendant ONTC; and
THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS ("BLE"), and SHAWN O’DONNELL, on his own behalf and on behalf of all members of the BLE employed by the Defendant ONTC Defendants/Respondents
Proceeding under the Class Proceedings Act, 1992
COUNSEL: C. Scott Ritchie, Q.C., David Williams, Jonathan Foreman, Randy Bennett, for the Plaintiffs
J.A. Prestage, for the Ontario Northland Transportation Commission,
Niki S. Lundquist, for CAW-Canada and Brian Stevens on his own behalf and on behalf of the Employees of the Defendant, ONTC represented by the CAW,
James McDonald and Dona L. Campbell, for the United Steel Workers of America (Local 1976) and Ron Marleau on his own behalf and on behalf of all Members of the USWA, Local 1976 employed by the Defendant ONTC; and BLE and Shawn O’Donnell on his own behalf and on behalf of all members of the BLE employed by the Defendant ONTC;
Michael A. Church, for the UTU and Philip Koning on his own behalf and on behalf of all the members of the UTU employed by the Defendant ONTC, and BMWE and Richard Paulin on his own behalf and on behalf of all members of the BMWE and its Locals 3 and 2697 employed by the Defendant ONTC; and IBEW and Gordon Louttit on his own behalf and on behalf of all members of IBEW – Systems Council No. 11, Local 2061 employed by the Defendant ONTC
DIVISIONAL COURT FILE NO.: 456/06
CLIFFORD McCAUL Plaintiff (Appellant)
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THE ONTARIO NORTHLAND TRANSPORTATION COMMISSION Defendant (Appellant)
COUNSEL: Kathryn Podrebarac, for the Plaintiff/Appellant
J.A. Prestage, for the Respondent/Defendant
BEFORE: CARNWATH, JENNINGS & FERRIER JJ.
COSTS ENDORSEMENT
CARNWATH J.:
[1] Daniel E. MacDougall et al. and Clifford McCaul each brought motions to certify a class proceeding against the respondent, Ontario Northland Transportation Commission ("ONTC"), regarding the status of, and amendments made to, the ONTC Pension Plan ("Plan"). The six respondent unions ("Unions"), who represent active ONTC employees, were added as defendants. The appellants appealed the June 6, 2006 decision of Hennessy J. refusing their motions to certify their proceedings as class actions under the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA"). The appeal was dismissed by an Endorsement issued February 19, 2007.
[2] The parties were invited to make brief written submissions as to costs within fifteen days after the date of issue of the Endorsement. Costs submissions have been received and this Endorsement now issues.
[3] ONTC seeks costs of $29,079.27 from the five appellants in Divisional Court File No. 364/06. It seeks costs of $3,429.25 from Clifford McCaul, in Divisional Court File No. 456/06. It seeks either substantial indemnity or at least partial indemnity costs from the appellants in Court File No. 364/06 on their motion to lead fresh evidence.
[4] The CAW, Local 103 and Brian Stevens seek costs of $2,150 against the appellants in Court File No. 364/06.
[5] The UTU, Local 1161 and Philip Koning, together with BMWE, Locals 3 and 2697 and Richard Paulin, and further together with IBEW, Local 2061 and Gordon Louttit, seek costs of $5,812.78 against the appellants in Court File No. 364/06.
[6] The USWA, Local 1976 and Ron Marleau, together with the BLE and Shawn O’Donnell, seek costs of $9,618.81 against the appellants in Court File No. 364/06.
[7] The appellants in Court File No. 364/06 submit the court should exercise its discretion and not order costs against those appellants.
[8] ONTC seeks costs of $3,429.25 from Clifford McCaul, in Divisional Court File No. 456/06. Clifford McCaul submits that the court should either award no costs or limit its award to $1,000.
[9] We find no special circumstances requiring a departure from the general rule that costs follow the event. We recognize that s. 131(1) of the Class Proceedings Act, 1992, provides that the court may consider whether the class proceeding was a test case, raised a novel point of law, or involved a matter of public interest. We find none of these factors present in these proceedings.
[10] The matter was important to the parties. The sums involved are significant and the future management of the Pension Plan was in play.
[11] In exercising our discretion, we are mindful of the overriding principle of reasonableness as articulated in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), para. 37. The exercise of our discretion reflects our view of what should be the fair and reasonable expectation of the parties.
[12] On the motion to introduce fresh evidence, the appellants were successful. Ordinarily, they would be entitled to their costs. However, we agree with the ONTC that the affidavit of David Proctor demonstrated the new evidence did not help us. Under the circumstances, the ONTC shall have its disbursements for Mr. Proctor’s report of $8,187.
[13] An order shall go as follows:
ONTC shall have costs of $20,000 inclusive, payable by the appellants in Court File No. 364/06, plus the disbursement of $8,187 referred to above.
The CAW, Local 103 shall have its costs of $2,150 inclusive, payable by the appellants in Court File No. 364/06.
UTU, Local 1161, BMWE, Locals 3 and 2697 and IBEW, Local 2061 shall have costs of $5,812.78 inclusive, payable by the appellants in Court File No. 364/06.
The USWA, Local 1976 and the BLE shall have their costs of $9,618.81 inclusive, payable by the appellants in Court File No. 364/06.
ONTC shall have its costs of $3,429.25 as against Clifford McCaul in Court File No. 456/06.
CARNWATH J.
JENNINGS J.
FERRIER J.
DATE: 20070523