CITATION: Sherry Good v. Toronto Police Services Board 2014 ONSC 6115
DIVISIONAL COURT FILE NO.: 288/13
DATE: 20141029
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: SHERRY GOOD v. TORONTO POLICE SERVICES BOARD and others
BEFORE: ASTON, NORDHEMER & LINHARES de SOUSA JJ
COUNSEL: M. Klippenstein & E. Gillespie, for the plaintiff/appellant
K. McGivney & C. Woodin, for the respondent
HEARD: Written submissions
ENDORSEMENT – COSTS
[1] On August 6, 2014, this court released its decision allowing the appeal, setting aside the order below and granting in its place an order certifying this proceeding as a class action. We awarded to the appellant her costs of the appeal fixed at $55,000 inclusive, the amount having been agreed by the parties. We invited written submissions on what the disposition should be of the costs of the original certification motion. We have now received and reviewed those submissions.[^1]
[2] The plaintiff submits that she should receive costs of the original certification motion in the amount of $749,267.03. She says that this amount is reasonable when viewed against the amount of $637,835.29 that the defendant sought when it was successful on the certification motion. The respondent submits that, because the appellant significantly reformulated her claim on the appeal, the respondent should receive $20,000 in costs thrown away or, in the alternative, that there should be no costs awarded on the certification motion. On the point of the reformulation of her claim, the appellant says that, if those changes are proper considerations when assessing costs (and the appellant does not accept that they are) then a discount of 20% would be a sufficient allowance for their impact.
[3] We begin by noting, as we did in our reasons on the appeal, that the issues raised in this class action are matters of public interest. We also accept that, given the nature of the claims being advanced, considerable effort was required on both sides to address the complexities of the issues raised.
[4] The issue of plaintiffs amending their claims as the certification process unfolds is a problematic one, as we commented on in our reasons on the appeal. We do not accept the appellant’s position that such changes are of no real consequence in the assessment of a proper award of costs. The fact is that, had the claim been put forward originally in the form that it was put forward on the appeal, the decision of the motion judge might well have been different. It follows that some amount of the time that was spent on the certification motion was wasted because the plaintiff had cast her claim too broadly. There must be costs consequences associated with plaintiffs who overreach in that fashion. Recognizing that point is not the same thing as engaging in an issue-by-issue apportionment of costs of the type that has been criticized in other cases – see, for example, Lau v. Bayview Landmark Inc., [1999] O.J. No. 4385 (S.C.J.).
[5] What is fair, in our view, is to recognize that the claim as presented before us was materially different than the claim presented before the certification judge. Indeed, on the appeal, the appellant abandoned her claim against three of the four named defendants. There were a number of issues raised by the claims against those defendants that had to be addressed by the certification motion judge that we did not have to address. It is a fact that those claims occupied some of the time and attention on the certification motion for which the appellant should not be compensated given that she has now abandoned those claims.
[6] All of that said, the respondent’s position greatly overstates the impact that this factor should have in the overall costs analysis. To suggest that, given the totality of the issues raised and the complexity of the matter (even on appeal), the respondent should be awarded costs of the certification motion, even a relatively low amount, is not defensible. We accept that the amount for costs must be reduced to reflect the change in the litigation landscape but that is very much different from awarding costs to the respondent, which would essentially turn the costs issue on its head. I would also note that this very argument was rejected by the Court of Appeal in its costs decision in Pearson v. Inco Ltd. (2006), 2006 7666 (ON CA), 79 O.R. (3d) 427.
[7] In terms of the amounts involved, we note two salient facts. First, while the respondent put in a bill of costs on the certification motion in the amount of $637,835.29, it only sought the amount of $393,233.37 in total for costs. Second, the motion judge only awarded the respondent the sum of $223,233.37 in costs.[^2]
[8] We have been referred to the recent decision in Keatley Surveying Ltd. v. Teranet Inc., 2014 ONSC 3690, [2014] O.J. No. 3250 (Div. Ct.) where a different panel of this court, in a somewhat similar situation, denied costs to the plaintiff for the certification motion. In doing so, Sachs J. said, at para. 21:
We accept that it is not unusual for cases to evolve as they proceed through the courts on a certification motion. However, this was not a case that just “evolved” from the case that was presented to the certification judge. It was almost completely re-formulated. As we noted in our appeal decision at para. 39, class action litigants should be deterred from completely re-casting their cases on appeal. Costs are an important tool for shaping the way parties conduct themselves: [citation omitted]
[9] We fully agree with this approach and the principle that underlies it. However, we note two very significant differences between this case and the one in Keatley. One is that the appellant did not completely re-formulate her case on the appeal. While certain defendants and their associated claims were dropped, the central claims against the Toronto Police remained. The other is that, in Keatley, the court concluded that the action did not involve matters of public interest. This case very much does. The presence of a public interest is an important element in assessing the appropriate amount for costs. As Rosenberg J.A. said in Pearson, at para. 8:
On the other hand, a factor favouring a more significant costs order in the appellant’s favour is that, in my view, this case involved a matter of public interest and therefore engaged s. 31(1) of the CPA.
I would point out that the plaintiff in Pearson significantly altered his claim on appeal. Indeed, the Court of Appeal described the plaintiff as having succeeded on “a relatively minor aspect of the original claim”. Nevertheless, the Court of Appeal awarded the plaintiff his costs of the certification motion in the amount of $90,000 all inclusive.
[10] Taking all of these considerations into account, we believe that the appellant is entitled to her costs of the original certification motion. Those costs have to be reduced, however, to reflect the time that was spent on the unsuccessful aspects of the claim as originally advanced. As the motion judge said in her costs endorsement, at para. 47:
However, there must be a balance between access to justice and holding the losing party accountable for a very flawed certification motion.
[11] In the end result, we fix the costs of the original certification motion at $100,000 plus the disbursements of $25,728.03 for a total award of $125,728.03 inclusive of HST. The costs are to be paid within thirty days.
ASTON J.
NORDHEIMER J.
LINHARES de SOUSA J.
DATE:
[^1]: Notwithstanding that, in our reasons, we stipulated that the “appellant (including the Law Foundation of Ontario) shall file their submissions within thirty days of the date of the release of these reasons”, the Law Foundation of Ontario did not file its costs submissions until October 17 (and then only after being contacted by the Registrar of the Divisional Court). We note that our reasons were released on August 6. While we have nonetheless considered the costs submissions of the Law Foundation in reaching our decision on costs, we would caution all parties that, in the future, the court may refuse to consider submissions that are delivered outside of the time limits set by the court.
[^2]: Good v. Toronto (City) Police Services Board, [2013] O.J. No. 4218 (S.C.J.)