COURT OF APPEAL FOR ONTARIO

CITATION: Bancroft-Snell v. Visa Canada Corporation, 2020 ONCA 549

DATE: 20200901

DOCKET: M49808, M50041 & M50130 (C66008)

Strathy C.J.O., MacPherson, Sharpe, Tulloch and Benotto JJ.A.

DOCKET: M50130

BETWEEN

Jonathon Bancroft-Snell, and 1739793 Ontario Inc.

Plaintiffs (Moving Parties)

AND

Visa Canada Corporation, Mastercard International Incorporated, Bank of America Corporation, Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Capital One Financial Corporation, Citigroup Inc., Federation des caisses Desjardins du Quebec, National Bank of Canada Inc., Royal Bank of Canada, and Toronto-Dominion Bank.

Defendants (Moving Parties)

AND BETWEEN

DOCKET: M49808

Jonathon Bancroft-Snell, and 1739793 Ontario Inc.

Plaintiffs (Responding Parties)

AND

Visa Canada Corporation, Mastercard International Incorporated, Bank of America Corporation, Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Capital One Financial Corporation, Citigroup Inc., Federation des caisses Desjardins du Quebec, National Bank of Canada Inc., Royal Bank of Canada, and Toronto-Dominion Bank.

Defendants (Responding Parties)

AND BETWEEN

DOCKET: M50041

Jonathon Bancroft-Snell, and 1739793 Ontario Inc.

Plaintiffs (Responding Parties)

AND

Visa Canada Corporation, Mastercard International Incorporated, Bank of America Corporation, Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Capital One Financial Corporation, Citigroup Inc., Federation des caisses Desjardins du Quebec, National Bank of Canada Inc., Royal Bank of Canada, and Toronto-Dominion Bank.

Defendants (Responding Parties)

Reidar Mogerman and Katie Duke, for Jonathan Bancroft-Snell and 1739793 Ontario Inc., moving parties (M50130), responding parties (M49808 & M50041)

Robert E. Kwinter, for Visa Canada Corporation, moving party (M50130), responding party (M49808 & M50041)

Jeffrey B. Simpson and James B. Musgrove, for Mastercard International Incorporated, moving party (M50130), responding party (M49808 & M50041)

Katherine L. Kay, for Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada and Toronto-Dominion Bank, moving parties (M50130), responding parties (M49808 & M50041) (no submissions made)

Sean Griffin and Antoine Brylowski, for National Bank of Canada Inc., moving party (M50130), responding party (M49808 & M50041)

James C. Orr and Kyle R. Taylor, for Home Depot of Canada Inc., moving party (M49808), responding party (M50130)

Edward J. Babin, Cynthia L. Spry, and Michael Bookman, for Wal-Mart Canada Corp., moving party (M50041), responding party (M50130)

Heard: September 4, 2019

COSTS ENDORSEMENT

[1] On October 17, 2019, a five-judge panel of this court[^1] released reasons granting the moving parties' motion to quash the appeal and dismissing the responding parties' motions for leave to act as representative plaintiffs. The reasons stipulated that the parties may make written submissions if they were unable to agree on costs.

[2] An application to the Supreme Court of Canada for leave to appeal this court's order was dismissed: 2020 CanLII 23634 and 2020 CanLII 23637.

[3] On May 11, 2020, counsel for the representative plaintiffs filed submissions claiming costs of $95,677.57, inclusive of disbursements and HST. Their covering letter noted that they had been unsuccessful in resolving the costs of this proceeding and of similar proceedings in other provinces.

[4] Mastercard and Visa, which were represented by the same counsel, jointly seek costs of $25,000, inclusive of disbursements and HST, with 50% of that amount to be paid by Wal-Mart and 50% to be paid by Home Depot. This is a significant reduction from their partial indemnity costs, which they set at $127,580, inclusive of HST and exclusive of disbursements.

[5] National Bank seeks costs of $19,492.79, inclusive of disbursements and HST, for its motion to quash Wal-Mart's appeal. It does not seek costs against Home Depot, which did not object to the settlement National Bank reached with the representative plaintiffs.

[6] Home Depot and Wal-Mart submit that there is no jurisdiction to award costs against them. They rely on s. 31(2) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA"), which provides that "[c]lass members, other than the representative party, are not liable for costs except with respect to the determination of their own individual claims."

[7] The purpose of s. 31(2) is to insulate class members from the costs of the various stages of class proceedings, such as certification and the common issues trial, in which they do not participate as a matter of course: see Trillium Motor World Ltd. v. General Motors of Canada Limited, 2017 ONCA 545, at para. 61. But this does not preclude the award of costs against a class member who seeks standing to participate in the proceeding, or who interjects themselves into the proceeding without seeking leave.

[8] Section 14(1) of the CPA provides that to ensure fair and adequate representation of the interests of the class or any subclass, or for any other appropriate reason, the court may, at any time in a class proceeding, permit one or more class members to participate in the proceeding. Subsection (2) provides that "[p]articipation under subsection (1) shall be in whatever manner and on whatever terms, including terms as to costs, the court considers appropriate."

[9] In Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 1598 (Ont. Gen. Div.), at paras. 28-29, Sharpe J., as he then was, held that a class member who sought standing to object to a settlement approval was subject to a costs award. See also Silver v. IMAX, 2012 ONSC 4064, at paras. 10-13.

[10] We are satisfied that the court's jurisdiction under ss. 14(1) and (2) of the CPA necessarily includes the ability to award costs against a class member who unsuccessfully seeks to represent the class in order to object to a settlement negotiated by the representative plaintiff.

[11] Home Depot also argues that costs should not be granted to the moving parties because they are being sought seven months after the release of the court's decision. Home Depot points to the court's Practice Direction on Civil Appeals, s. 18.5, which requires that, unless the court directs otherwise, a party entitled to costs shall deliver its bill of costs together with any submissions within seven days of the release of the decision.

[12] The delivery of costs submissions long after an appeal has been heard is burdensome for the parties and for the court. In some cases, it might result in costs being refused all together. In this case, the application for leave to appeal to the Supreme Court of Canada, the added complexity of proceedings in other jurisdictions, reasonable efforts to resolve costs and the intervention of a national health emergency provide justification for the delay.

[13] The motions were of significance to all the parties. The possibility that the responding parties would be allowed to proceed with their appeal threatened to completely upend the settlement of the class proceeding. We do not accept the submission of Home Depot and Wal-Mart that the parties should bear their own costs because the issues were "novel". We found that the law had been settled for twenty years.

[14] The amounts claimed by Visa, Mastercard and National Bank are reasonable, and we award them their costs as claimed, payable in the manner indicated above. The amount claimed by the representative plaintiffs, while perhaps reasonable by their lights, exceeds what the responding parties could reasonably be expected to pay. We fix their costs at $50,000, inclusive of disbursements and all applicable taxes.

"G.R. Strathy C.J.O."

"J.C. MacPherson J.A."

"M. Tulloch J.A."

"M.L. Benotto J.A."

[^1]: Sharpe J.A. retired subsequent to the release of the reasons and did not participate in this decision as to costs.