Court File and Parties

COURT FILE NO.: 15-51609-CP DATE: 20240412 SUPERIOR COURT OF JUSTICE – ONTARIO

In the Matter of the Class Proceedings Act, 1992, S.O. 1992, c. 6, as amended

RE: Peter Gaibisels, Plaintiff

AND:

Solart LLL Corp., Solart International Inc., Solart Group, Blacksun Investments Inc., Gestion Marc-Andre Lemieux Inc., 8378541 Canada Inc., Viviane Lea Abecassis, Elisa Marcela Barrios, Ai Chen, Julien Cyr, Natercia Dos Santos, Elaine Dubois, Martin Dupuis, Fanny Girard, Melanie Lacroix, Marc-Andre Lemieux, Francisco Lemieux, Veronique Lemieux, Mark Leyton, Lennie Moreno, Sunny Natalia, Leonor Nonnenmacher, Sophie Poirier, Nikhil Toshniwal, Nicolas Vanhove, Martin Yockell, The Toronto Dominion Bank, 2325524 Ontario Inc. O/A Sentinel Solar, Guy Phillipe Bouchard and Energia-360 Canada Inc., Defendants

BEFORE: Justice D.A. Broad

COUNSEL: Winfield Corcoran, for the Plaintiff Zachary Parrott for the Defendants Solart LLL Corp., Solart International Inc., Solart Group, Blacksun Investments Inc., Gestion Marc-Andre Lemieux Inc., 8378541 Canada Inc., Marc-Andre Lemieux and Francisco Lemieux John P. Ormston for the Defendant Melanie LaCroix Adam Ronan for the Defendant Mark Leyton Andrew D. Pelletier for the Defendant Sunny Natalia James Renihan for the Defendant Nikhil Toshniwal Laura F. Cooper and Rachel Hung for the Defendant Martin Yockell Amanda McLachlan for the Defendant 2325524 Ontario Inc. o/a Sentinel Solar Caitlin Sainsbury and Stephanie Gagne for the Defendant Guy-Phillippe Bouchard

Costs Endorsement on Motions for Refusals on Cross-Examinations

[1] In this proposed class action proceeding, the plaintiff seeks damages against each defendant in the sum of $4,800,000 alleging fraud, and unjust enrichment, and punitive damages in the sum of $15,000,000. The Statement of Claim alleges that the proposed class members made deposits to Solart LLL Corp and/or Solart International Inc. and any related defendant corporation or defendant for the purchase of solar panels and did not receive the solar panels. The representative plaintiff brought a motion seeking relief in respect of the refusals to answer certain questions by or on behalf of 19 defendants on their cross examinations or that of their representatives, either as deponents of affidavits or persons cross examined pursuant to rule 39.03 of the Rules of Civil Procedure on the plaintiff’s pending certification motion.

[2] In his motion the plaintiff sought various additional declaratory relief against certain defendants as set forth at paragraphs 2 through 8 of his notice of motion.

[3] The defendants Solart LLL Corp., Solart International Inc., Solart Group, Blacksun Investments Inc., Gestion Marc-Andre Lemieux Inc., 8378541 Canada Inc., Marc-Andre Lemieux and Francisco Lemieux (the "Solart defendants") brought a motion arising out of refusals given by the plaintiff on cross-examination on his affidavit in support of his motion for certification.

[4] On December 12, 2023 I released my Reasons for Decision with respect to the motions. The reasons have been reported at 2023 ONSC 6827. It is not necessary to repeat the facts set out in detail in the Reasons for the purposes of this costs endorsement.

[5] The plaintiff’s motion was dismissed in its entirety, with the exception of the granting of an order that the self-represented defendants Vivianne Abecassis and Fanny Girard (who did not appear to be cross-examined and did not appear in response to the motion) each attend to be examined to answer proper questions of plaintiff’s counsel.

[6] The motion of the Solart defendants was allowed and it was ordered that the plaintiff re-attend on his cross-examination to answer the refusals set out in the Solart Defendants’ refusals chart, further proper questions relating to the refusals and proper follow-up questions arising from answers given.

[7] In the Reasons for Decision, I directed that any defendant who seeks an order for costs against the plaintiff in respect of the motions may make written submissions as to costs within 30 days of the release of the reasons. The plaintiff was given 30 days to respond to the submissions of each defendant who has delivered costs submissions and each defendant has a further 10 days to deliver a reply submission.

[8] Costs submissions were received from or on behalf of the following defendants: (a) The Solart Defendants; (b) Nikhil Toshniwal; (c) Sunny Natalia; (d) Melanie LaCroix; (e) Mark Leyton; (f) Guy-Phillippe Bouchard; (g) 2325524 Ontario Inc. o/a Sentinel Solar; (h) Martin Yockell;

[9] The plaintiff delivered initial costs submissions on February 12, 2024 which addressed only the submissions of the defendants Martin Yockell and Melanie LaCroix. The plaintiff delivered additional submissions on February 23, 2024 which addressed the costs submissions of each defendant who sought costs. By Endorsement dated March 20, 2024 the plaintiff was granted leave to file these additional submissions. Reply submissions were received from the defendants from the Solart Defendants and Martin Yockell on March 28, 2024.

Guiding Principles Respecting Costs

[10] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[11] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in sub rule 57.01(1) of the Rules of Civil Procedure, including, in particular: (0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged, and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed. (c) the complexity of the proceeding; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution;

[12] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan at para. 24).

[13] Justice Perrell in the case of 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 reformulated the purposes of the modern costs rules, at para. 10, as follows: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.

[14] The usual rule in civil litigation is that costs follow the event and that rule should not be departed from except for very good reasons (see Gonawati v. Teitsson and Macfie v. Cater at para 28).

[15] Substantial indemnity costs, because of a losing party's behaviour, should be rare and exceptional absent applicable settlement offers and they should only be ordered where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties in the circumstances giving rise to the cause of action or in the proceedings (see Young v. Young at para. 134; Krieser v Garber, 2020 ONCA 699 at para. 137).

[16] The overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC).

Plaintiff’s Submissions applicable to all defendants and Discussion

[17] In his written costs submissions the plaintiff made reference to the award of costs of $750 in favour of the plaintiff against each of the two unrepresented defendants Vivian Lea Abecassis and Fanny Girard who failed to attend to be cross-examined, had certificates of non-attendance were issued against them, and were ordered to re-attend to be cross-examined, as a measure of the pre-argument costs which may be claimed by each defendant seeking costs.

[18] The fixing of costs of $750 against each of these defendants represented the amount to be paid by the self-represented defendants for their non-attendance at cross-examination and should not be taken as a proper measure of the costs of the defendant’s costs to prepare for and attend on the motions.

[19] The plaintiff made repeated reference in his submissions to the content of settlement discussions between counsel respecting costs. The court customarily encourages the parties to settle costs. Although the fact that settlement discussions have occurred is not privileged, the content of the settlement positions taken by the parties is. (See Sable Offshore Energy Inc. v Ameron International Corp., 2013 SCC 37 at paras. 13-14). The precise words “without prejudice’ are not necessary to invoke the privilege but what matters instead is the intent of the parties to settle the action, or, in this case the question of costs, and any negotiations undertaken with this purpose are inadmissible. Moreover, the plaintiff has not suggested that any of the defendants consented to the contents of their settlement positions on costs being disclosed to the court.

[20] The plaintiff made repeated reference to the fact that there is a pending motion for leave to appeal the decision to the Divisional Court and that certain of the defendants relied in their submissions on findings of fact in the decision in respect of which leave to appeal is sought. In my view, it is entirely appropriate for the defendants to reference findings of fact in the decision giving rise to a claim for costs, regardless of whether it is under appeal.

A - The Solart Defendants

(a) Position of the Solart Defendants

[21] The Solart Defendants submit that they were wholly successful on both motions before the court and are presumptively entitled to costs. They submit that a substantial indemnity costs award of $41,964.13 is warranted on the basis that both motions were the result of plaintiff’s counsel’s improper conduct. The Court found that the plaintiff’s adjournment of his cross-examination of the representative of the Solart Defendants Marc-Andre Lemieux and the plaintiff’s refusals on his examination were improper.

[22] The Solart Defendants submit that plaintiff’s counsel essentially prepared no argument on the motions. This effectively reversed the onus, requiring the Solart Defendants (as well as all other defendants) to argue the propriety of their own refusals. In oral argument, plaintiff’s counsel took the position that the defendants bore the onus of establishing that his questions were not relevant, which was an obvious subversion of the governing law of examinations and underscored the fact that the issues in play were not complex, fine points of law, but the basic rudiments of the conduct of examinations.

[23] The Solart Defendants submit that, regardless of motive, plaintiff’s counsel’s actions were egregious and wasteful and put significant strain on judicial resources.

[24] The Solart Defendants submit that an award of costs thrown away on a substantial indemnity scale is warranted. Counsel for the Solart Defendants prepared for cross-examination more than one year ago, which involved reviewing a motion record of nearly 6000 pages. Plaintiff’s counsel made an improper blanket refusal to answer any questions regarding the merits of the claim and forestalled counsel’s attempt to effectively cross-examine the plaintiff. Much of the preparation work done will need to be duplicated as counsel will need to re-familiarize themselves with a massive motion record.

[25] The Solart Defendants state that the Costs Outlines produced by other defendants indicate that their costs as claimed are reasonable. The responding Factum of plaintiff’s counsel to the Solart Defendants’ motion, which was not received until the morning of the hearing, claimed costs of $25,000 which supports the fact that the Solart Defendants’ claimed costs, which are below this amount for each motion, were well within the plaintiff’s reasonable expectations.

[26] The Costs Outline submitted by the Solart Defendants indicates the following for fees in respect of the plaintiff’s refusals motion against them, on a partial indemnity, and substantial indemnity basis as follows: (a) costs of preparing and attending cross-examination of the defendants Marc- Andre Lemieux and Francisco LeMieux Partial indemnity fees $1,002.75 (total with HST $1,133.11); Substantial indemnity fees $1,337.00 (total with HST $1,510.81) (b) Costs of Responding to and Attending on Plaintiff’s Refusal Motion Partial indemnity fees $6,607.80 (total with HST $7,610.55) Substantial indemnity fees $8810.40 (total with HST $9,955.75)

[27] The Solart defendants’ Costs Outline indicates the following for fees in respect of the Solart Defendants’ motion, on a partial indemnity and substantial indemnity basis as follows: (a) costs of preparing for and attending cross-examination of the plaintiff Partial indemnity fees $10,606.20 (total with HST and disbursements $11,758.55) Substantial indemnity fees $14,141.60 (total with HST and disbursements $16,443.31 (b) costs of preparing and attending the Solart Defendants’ refusal motion Partial indemnity fees $10,105.80 (total with HST and disbursements $11,758.55) Substantial indemnity fees $13,474.40 (total with HST and disbursements $15,565.07)

Position of the Plaintiff

[28] The plaintiff submits that the range of costs submitted by the various defendants varies between $1,875 and $41,964.13 on the same evidence with no explanation offered for the difference.

[29] He also submits that the costs awarded to him for costs thrown away in the sum of $750 against each of the defendants Ms. Abecassis and Ms. Girard should be regarded as the measure of costs which each defendant can expect for the period up to the commencement of the refusals motion. On this basis of proportionality, each defendant should be expecting $800 to $1000 for a single day, with a bit more for counsel for the Solart defendants for his attendance on the second day of the hearing.

Reply submissions of the Solart Defendants.

[30] In Reply the Solart defendants assert that the plaintiff has filed material that violates settlement privilege. They point out on the authority of Sable Offshore Energy Inv. v. Ameron International Corp., 2013 SCC 67 at paras. 13-14 that parties are more likely to settle knowing the content of their negotiations will not be disclosed. The Solart defendants request the court to disregard any references to the content of settlement negotiations between them and the plaintiff.

[31] The Solart defendants assert that in referring repeatedly to the fact that the underlying decision is under appeal, the plaintiff has refused to make substantive submissions because he disagreed with the underlying decision. The Solart defendants made reference to my decision in Talwar v. Grand River Hospital, 2018 ONSC 6645 at para. 16 for the proposition that there is no basis to decline to make an award of costs or to stay a costs disposition pending the outcome of the applicant’s motion for leave to appeal.

[32] The Solart Defendants submit that six hours of time per motion in addition to $750 does not account for necessary preparation of motion materials, research and oral arguments and review of other parties motion materials, nor does it address the costs thrown away or duplicated for preparation for cross-examination of the plaintiff. The plaintiff’s counsel necessitated the Solart defendants’ motion and was the sole reason for the plaintiff’s own motion. The costs consequences should rest with the plaintiff.

Discussion

[33] I find that the sum of $750 costs awarded against each of the defendants Ms. Abecassis and Ms. Girard represented costs of the plaintiff in attending and obtaining a certificate of non-attendance and should not be viewed as representing the measure of the costs of pre-hearing attendances of each of the defendants appearing on the motions.

[34] I am not satisfied that the plaintiff’s counsel’s conduct in adjourning the cross-examination of the representative of the Solart Defendants to bring a refusals motion on two unanswerable questions, in instructing the plaintiff to refuse to answer proper questions based upon a blanket assertion that the questions “went to the merits,” or in his manner of conducting the motions warrants an award of substantial indemnity costs. As noted previously, absent an Offer to Settle being bested, an award of substantial indemnity costs due to a losing party's behaviour, should be rare and exceptional. Although the positions taken by plaintiff’s counsel may be described as unreasonable, his conduct did not cross the line into being reprehensible, scandalous, or outrageous, which are adjectives which describe a party’s or counsel’s personal conduct as opposed to their approach, however misguided or mistaken, to a legal issue or to a lack of preparation. Moreover, there was no suggestion that plaintiff’s counsel misled the court or opposing counsel.

[35] However, I am satisfied that an award of costs thrown away is appropriate in respect of the need for the Solart Defendants’ counsel to conduct some renewed preparation for a reattendance on a further cross-examination of the plaintiff.

[36] In the case of Nelson v. Chadwick, 2019 ONSC 4544 Verbeem, J. at para. 27 provided a useful summary of the principles to be considered in relation to a claim for costs thrown away as follows: Costs thrown away is a request for payment of a party's costs for wasted trial preparation including preparation that will have to be redone as a result of the trial adjournment and are generally payable on a full or substantial recovery basis: see Pittiglio v. Pittiglio, 2015 ONSC 3603, at para. 5. An award of "costs thrown away" is not designed to penalize a party who seeks, or is responsible for, an adjournment of the trial, but rather to indemnify a party for the wasted time incurred for trial preparation that was stripped of its value as a result of a subsequent adjournment or mistrial: see Graziano v. Ciccone, 2017 ONSC 362, at para. 8. The assessment of "costs thrown away" is an intuitive exercise that is not performed with exacting precision. The court is required to carefully review a party's bill of costs to determine, intuitively, what portion of the trial preparation or work falls within the scope of "wasted time": see Stadnyk v. Dreshaj, 2019 ONSC 1184, at para. 15.

[37] In my view the costs claimed by the Solart Defendants for preparing for and attending on the Cross-examination of Marc-Andre LeMieux are not recoverable. The plaintiff was entitled to cross-examine Mr. LeMieux who was produced on behalf of the Solart Defendants and, although the court found that two questions posed to him were properly refused, the cost of preparation for and the attendance itself does not flow from that finding. Moreover, the principle of costs thrown away has no application. The costs for preparation and attendance on the cross-examination of the Solart Defendants’ representative Marc-Andre LeMieux will not have to be duplicated by counsel for the Solart Defendants as no further cross-examination of him was ordered.

[38] However, a portion of the costs of preparing for and re-attending on the cross-examination of the plaintiff will be duplicated. As set out in the Solart Defendants’ Costs Outline, the actual fees incurred for the costs of these steps were $17,677.

[39] As indicated in Nelson v. Chadwick, 2019 ONSC 4544, costs thrown away are customarily awarded on a substantial or full indemnity basis. Not all of the costs for preparation and reattendance would need to be duplicated by counsel for the Solart Defendants.

[40] In exercising my discretion on an “intuitive” basis, I fix the Solart Defendants’ costs thrown away in wasted preparation and reattendance on cross-examination of the plaintiff at $5,892.00 representing one third of the costs originally incurred by counsel for the Solart Defendants to prepare for and attend on the cross-examination of the plaintiff.

[41] I find the partial indemnity costs claimed by the Solart Defendants for prosecuting their motion and in responding to the plaintiff’s motion to be reasonable and within the plaintiff’s reasonable expectations.

Determination re claim for costs of the Solart Defendants

[42] It is not appropriate to award costs to the Solart Defendants for the costs of preparing for and attending on the original cross-examination of the plaintiff on his affidavit. This was a step which was available to the Solart Defendants and took place regardless of the outcome of the Solart Defendants’ motion. I would therefore disallow a costs award for this item. The costs of the cross-examination of the plaintiff itself is a matter to be addressed following trial.

[43] Although there were two counsel representing the Solart defendants, based upon their Costs Outline, I find that there was no indication of duplication of effort and the services of junior counsel were utilized appropriately. I find that in light of the amount claimed in the action, and the issues raised by the plaintiff, the appropriate amount for the plaintiff to pay to the Solart Defendants (Solart LLL Corp., Solart International Inc., Solart Group, Blacksun Investments Inc., Gestion Marc-Andre Lemieux Inc., 8378541 Canada Inc., Marc-Andre Lemieux and Francisco Lemieux) for costs to be as follows: Partial indemnity fees of the plaintiff’s motion, inclusive of HST -$7,466.81 Partial indemnity fees of the Solart Defendants’ motion inclusive of HST and disbursement for filing fee - $11,105.80 Costs thrown away in preparing for and re-attending on the plaintiff’s cross-examination - $5,892 TOTAL: $ 24,464.61

B - Nikhil Toshniwal

[44] The defendant Nikhil Toshniwal seeks costs on a partial indemnity basis in the sum of $8,237.70, comprised of fees in the sum of $7,290.00, plus HST in the sum of $947.00. Counsel for Mr. Toshniwal acknowledged that he is representing Mr. Toshniwal on a pro bono basis. The Court of Appeal in the case of 1465778 Ontario Inc. v. 1122077 Ontario Ltd. held at para. 48 that it is both appropriate and necessary that costs awards be available to successful pro bono litigants in ordinary private law cases both at the end of the case and on interlocutory motions.

Position of the Plaintiff

[45] The plaintiff submitted that Mr. Toshniwal’s submissions on costs rely upon the Reasons of the court which is under appeal to the Divisional Court. He also made reference to the settlement position taken by Mr. Toshniwal.

Discussion

[46] As stated previously in reference to the Solart Defendants, it is not appropriate to award costs to Mr. Toshniwal for preparing for and attending on the cross-examination of the plaintiff which was an expected step in the proceeding and would have occurred regardless of the outcome of the plaintiff’s motion. I therefore exclude partial indemnity costs for this item in the sum of $630 plus HST of $81.90 totalling $711.90. As stated previously, the settlement positions of the parties costs are privileged and it is appropriate for the defendant Toshniwal to reference the Reasons giving rise to the claim for costs, notwithstanding that a motion for leave to appeal has been brought. I find that Mr. Toshniwal is entitled to an award of costs and that the amount is reasonable and proportionate.

Determination re claim for costs of Nikhil Toshniwal

[47] I find that the time spent by counsel and the partial indemnity hourly rate of $450 utilized to be reasonable although counsel for Mr. Toshniwal was acting on a pro bono basis. There was no duplication as only one counsel acted. I find that it is appropriate to order that the plaintiff pay costs to the defendant Mr. Toshniwal fixed on a partial indemnity basis. I agree with the submission of counsel for Mr. Toshniwal that counsel’s usual hourly rate on similar matters may be utilized in quantifying costs given the costs exposure that Mr. Toshniwal is subject to, and the need to dissuade unnecessary motions such as the one in the case at bar. I would not allow costs of attending on the second day of the hearing: Preparation for Motion on refusals by plaintiff $2,970. Attendance at the hearing of the plaintiff’s motion (one day’s attendance) 4 hours x $450.00 per hour $1,800 SUBTOTAL $4,770 HST $620.10 TOTAL $5,390.10

C. - Sunny Natalia

[48] The defendant Sunny Natalia seeks costs of the plaintiff’s motion on a substantial indemnity basis in the sum of $7,400.51 comprised of fees in the sum of $6,549.12 and HST in the sum of $851.39.

[49] Mr. Natalia argues that substantial indemnity costs are warranted on the basis that the plaintiff’s motion had no merit and that the plaintiff was reckless to proceed with his groundless motion.

Position of the Plaintiff

[50] The plaintiff submits that Mr. Natalia relies only upon the decision below in respect of which is the subject of a motion for leave to appeal. The plaintiff notes that three lawyers were involved for Mr. Natalia and are claiming costs.

Discussion

[51] The weight of authority as indicated above is that substantial indemnity costs should only be ordered where there has been reprehensible, scandalous, or outrageous conduct on the part of a party against whom costs are sought. I am not satisfied that this line has been crossed in reference to Mr. Natalia. I would not allow for counsel’s attendance on the motion for two days as set forth in Mr. Natalia’s Costs Outline. and would reduce the time for estimated lawyer for preparation and attendance from $1,600 to $800.00.

Determination

[52] I find the defendant Sunny Natalia is entitled to an award of partial indemnity costs against the plaintiff in the sum of $3,470.51. comprised of fees in the sum of $3,071.25 plus HST in the sum of $399.26. I find that this amount reasonable and proportionate.

D – Melanie LaCroix

[53] The defendant Melanie LaCroix also seeks an award of costs on a substantial indemnity basis in the sum of $12,053.15 comprised of fees in the sum of $10,666.50 plus HST of $1,386.65. She argues that the plaintiff’s motion against her had no merit. An award of substantial indemnity costs would send a message to the plaintiff respecting how they are conducting the litigation that reflects the impact that it is having on the defendants.

[54] As noted previously, substantial indemnity costs should only be ordered where there has been reprehensible, scandalous, or outrageous conduct on the part of party against who costs are sought. I am not satisfied that this test has been met in reference to Ms. LaCroix.

The plaintiff’s submissions respecting the claim for costs of Ms. LaCroix sought to introduce improper references to privileged communications between counsel respecting possible settlement of costs.

Position of the Plaintiff

The plaintiff made reference to settlement negotiations as well as the fact that a motion for leave to appeal has been brought in respect of the underlying decision.

Determination re claim for costs of Melanie LaCroix

[55] I find that an award of partial indemnity costs against the plaintiff in favour of the defendant Melanie LaCroix in the sum of $7,231.89 comprised of fees in the sum of $6,399.90 and HST of $831.99 is reasonable and proportionate.

E – Mark Leyton

[56] The defendant Mark Leyton also seeks an award of costs on a substantial indemnity basis but in a modest amount of $2,773.13 plus HST for a total of $3,481.81. Mr. Leyton, like other defendants, points to the lack of merit of the plaintiff’s motion and the effect that the prolonged proceeding is having on him. In the absence of reprehensible, scandalous, or outrageous conduct the court is not at liberty to award substantial indemnity costs.

Determination re claim for costs of Mark Leyton

[57] Mark Leyton seeks substantial indemnity costs of $2,773.13 plus HST. For the reasons set forth above, I find that an award of partial indemnity costs against the plaintiff in favour of the defendant Mark Leyton in the sum of $1631.25 plus HST in the sum of $212.06 totalling $1,843.31 would be reasonable and proportionate. This amount is attributable to the relatively low hourly rate of counsel for Mr. Leyton of $250 per hour ($125 partial indemnity rate).

F – Guy-Phillipe Bouchard

[58] The defendant Guy-Phillippe Bouchard seeks an award of costs on a partial indemnity basis in the sum of $14,628.11, comprised of fees in the sum of $12,912.00, HST on fees in the sum of $1,678.56 and disbursements in the sum of $37.55. Mr. Bouchard submits that the plaintiff could reasonably have expected to pay a costs order in the amount sought by him, given the length and density of the plaintiff’s Motion Record, including various forms of unconventional and improper relief sought, which unnecessarily increased the duration and complexity of the proceeding. The inclusion of improper forms of declaratory relief required Mr. Bouchard to devote additional time and resources in preparing written materials and submissions.

Position of the Plaintiff

[59] The plaintiff submits that the imposition of costs in the range sought by Mr. Bouchard could seriously compromise the ability of the class action to continue.

Determination re claim for costs of Guy-Phillippe Bouchard

[60] I find that Mr. Bouchard is entitled to an award of partial indemnity costs against the plaintiff. I find that the sum of $14,628.11 inclusive of HST and modest disbursements to be proportionate for responding to the plaintiff’s motion and within the plaintiffs’ reasonable expectations.

G - 2325524 Ontario Inc. o/a Sentinel Solar

[61] The defendant 2325524 Ontario Inc. o/a Sentinel Solar, represented by Adam Webb who was examined pursuant to rule 39.03 of the Rules of Civil Procedure, seeks costs on a substantial indemnity basis in the sum of $8,537.21, comprised of fees in the sum of $7,555.05 and HST in the sum of $982.16. Sentinel Solar submits that the plaintiff’s conduct in bringing a motion which was doomed to fail and which exemplified a series of steps taken which resulted in excessive delay and undue financial and temporal costs to the defendants is worthy of sanction by an award of substantial indemnity costs.

Position of the Plaintiff

[62] The plaintiff submitted that Sentinel Solar’s submissions closely follow the decision under appeal. He also made reference to settlement issues in his submissions.

Determination re claim for costs of Sentinel Solar

[63] As noted previously, notwithstanding the lack of merit in the plaintiff’s motion, I am not satisfied that that the plaintiff’s conduct vis-à-vis Sentinel Solar crossed the threshold of being reprehensible, scandalous, or outrageous so as to warrant an award of substantial indemnity costs.

[64] For the reasons referred to earlier, I find that an award of partial indemnity costs against the plaintiff in favour of the defendant 2325524 Ontario Inc. o/a Sentinel Solar in the sum of $5,691.47, inclusive of HST would be reasonable, proportionate and in line with the plaintiff’s reasonable expectations.

H – Martin Yockell

[65] The defendant Martin Yockell seeks an order for costs of the motion brought by the plaintiff on a substantial indemnity basis in the sum of $17,289, comprised of fees in the sum of $15,300 and HST in the sum of $1989. He submits that it is an appropriate case for the court to mark its disapproval of class counsel’s conduct by an award of substantial indemnity costs.

[66] The amount claimed for substantial indemnity costs represents 90% of Mr. Yockell’s actual costs and partial indemnity costs in the sum of $11,526, comprised of fees in the sum of $10,200 and HST in the sum of $1,326 have been calculated at 60% of the actual costs.

[67] Mr. Yockell submits that substantial indemnity costs are generally awarded where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties, citing Young v. Young and Mortimer v. Cameron at para. 67.

[68] Mr. Yockell’s counsel submits that during his cross-examination class counsel improperly precluded his counsel from registering her objections to his line of questioning by (i) refusing to let Mr. Yockell’s counsel speak at all by speaking over her and interrupting her constantly; (ii) making personal attacks on Mr. Yockell’s counsel; (iii) telling the interpreter to ignore Mr. Yockell’s counsel; and (iv) telling Mr. Yockell’s counsel that she could object only after Mr. Yockell answered the question. Counsel submits further that class counsel precluded the possibility of further answers to any other questions by his conduct and precluded the possibility of discussing the issue either on or off the record by not permitting Mr. Yockell’s counsel to speak and abruptly ending the cross-examination and logging off the video-conference without warning.

[69] Counsel for Mr. Yockell submits that the plaintiff counsel exacerbated his conduct by bringing the rule 34.14 motion which was unwarranted and based on plaintiff’s counsel’s own improper conduct.

[70] Although the services of Mr. Yockell’s counsel’s firm are being provided pro bono, he submits that costs awards are available when litigants are represented by pro bono counsel and that such awards (1) are a disincentive to litigants abusing the court’s process by advancing frivolous actions and defences; and (2) promote access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases, citing 1465778 Ontario Inc. v. 1122077 Ontario Ltd. at para. 35 and Volpe v Wong-Tam, 2022 ONSC 4071 at para. 26.

The Plaintiff’s Position

[71] The plaintiff submitted that the underlying decision is under appeal and that settlement privilege cannot be used to hide what he alleged were dishonest or misleading statements. He also referenced the costs of having failed to negotiate a settlement on the question of costs.

[72] The plaintiff’s allegations misleading statements by Mr. Yockell’s counsel during settlement discussions on costs were disputed in reply submissions. In my view it is inappropriate for the court to make a factual finding on whether there were misleading statements made during settlement discussions, as it calls upon the court to weigh written evidence from counsel on disputed facts.

Discussion

[73] The Court of Appeal in 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (Ont. C.A.) concluded that there should be no prohibition on an award of costs in favour of pro bono counsel in appropriate cases because the law now recognizes that costs awards may serve purposes other than indemnity. It is neither inappropriate nor does it derogate from the charitable purpose of volunteerism, for counsel who have agreed to act pro bono to receive some reimbursement for their services from the losing party in the litigation. Indeed, allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positive consequences in that it ensures that both parties know that they are not free to abuse the system without fear of the sanction of an award of costs and it promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono.

[74] I find that class counsel did engage in reprehensible conduct in the manner described, as disclosed by the transcript of the examination of Mr. Yockell.

[75] In the circumstances I find that an award of substantial indemnity costs against the plaintiff in favour of Mr. Yockell is warranted for the reasons set forth above.

[76] Mr. Yockell seeks an award of costs on a substantial indemnity basis in the sums of $7,425 for preparing a responding Factum and abbreviated Book of Authorities in response to the plaintiff’s rule 34.14 motion and $7,875 to complete preparation for and attendance on the motion and attendance by two counsel for 7 hours each.

[77] In my view, there was a degree of duplication in preparation of the responding motion materials between two counsel. Moreover, it was not necessary for both junior and senior counsel to claim costs for attendance on the motion. I would reduce Ms. Cooper’s fee component for document preparation from $3,825 to $2,000 and eliminate Ms. Hung’s fee component in respect of attendance on the motion in the sum of $2,520 and reduce Ms. Cooper’s attendance time from 7.0 to 5.0 hours from $5,355 to $3,825.

[78] The total amount in respect of Mr. Yockell’s substantial indemnity costs total $7,425 for preparation of a responding Factum and abbreviated Book of Authorities and $3,825 for final preparation and attendance on the plaintiff’s motion for a total of $11,250.

Summary

[79] In summary, it is ordered that the plaintiff shall pay costs in respect of his motions and the motion brought against him by the Solart Defendants to the following defendants in the following amounts:

A - The Solart Defendants: (i) Partial indemnity costs of the plaintiff’s motion, inclusive of HST -$7,466.81; (ii) Partial indemnity costs of the Solart Defendants’ motion inclusive of HST and disbursement for filing fee - $11,105.80 (iii) Costs thrown away in preparing for and re-attending on the plaintiff’s cross-examination inclusive of HST - $5,892 TOTAL: $ 24,464.61 inclusive of HST Payable within 30 days.

B - Nikhil Toshniwal (i) Partial indemnity costs of the plaintiff’s motion $5,390.10 inclusive of HST payable within 30 days;

C. - Sunny Natalia (i) Partial indemnity costs of the plaintiff’s motion $3,470.51 inclusive of HST payable within 30 days;

D – Melanie LaCroix (i) partial indemnity costs of the plaintiff’s motion in the sum of $7,231.89 inclusive of HST payable within 30 days;

E – Mark Leyton (i) partial indemnity costs of the plaintiff’s motion in the sum of $1,843.31 inclusive of HST payable within 30 days;

F – Guy-Phillipe Bouchard (i) partial indemnity costs of the plaintiff’s motion in the sum of $14,628.11 inclusive of HST payable within 30 days;

G - 2325524 Ontario Inc. o/a Sentinel Solar (i) partial indemnity costs of the plaintiff’s motion in the sum of $5,691.47, inclusive of HST payable within 30 days;

H – Martin Yockell (i) substantial indemnity costs of the plaintiff’s motion in the sum of $11,250 payable within 30 days;

Order accordingly.

D.A. Broad, J. Date: April 12 2024