Court File and Parties

Court File No.: CV-10- 397096
Date: 20121228
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Trillium Motor World Ltd., Plaintiff

AND:
General Motors of Canada Limited and Cassels Brock & Blackwell LLP, Defendants

Proceeding under the Class Action Proceedings Act, 1992 , S.O. 1992, c. 6

BEFORE: Justice E. P. Belobaba

COUNSEL:
For Trillium Motor World : Bryan Finlay, David Sterns, Allan Dick, Marie-Andree Vermette and Michael Statham

For General Motors of Canada : David Morritt and Evan Thomas

For Cassels Brock & Blackwell : Peter Griffin and Rebecca Jones

For non-party Canadian Automobile Dealers Association : Paul Morrison and Eric Block

HEARD: October 16, 2012

COSTS AWARD

[ 1 ] In a decision released on November 16, 2012, I dismissed the two Rule 30 motions brought by General Motors of Canada and Cassels Brock & Blackwell for the production of privileged documents. I agreed with the moving parties that solicitor-client privilege had explicitly been waived by Trillium’s counsel during the cross-examinations but I nonetheless dismissed the motions because the content of the legal advice received by Trillium as an individual car dealer was irrelevant to the more broadly-stated common issues as certified by Justice Strathy. There was no basis upon which GMCL or CBB could compel disclosure of that particular legal advice at the common issues stage of the proceeding.

[ 2 ] I have now reviewed the costs submissions. There are two issues to resolve, appropriate range and quantum. First, range. Trillium asks for about $41,500 in partial indemnity costs. In my view, this is excessive for a Rule 30 productions motion even in the context of class action litigation where unbridled excess seems to be the norm. [1]

[ 3 ] GMCL and CBB provided their own costs outlines showing that they would have claimed about $24,000 all-inclusive, on a partial indemnity basis, had they prevailed on the motions. CBB suggested, I think reasonably, that the appropriate range, should be no more than $25,000 to $30,000. I accept these submissions and I find that the range of the costs award for a completely successful respondent should be at most $24,000 to $25,000.

[ 4 ] I will now consider the quantum. GMCL and CBB submit that success was divided and no costs should be awarded, or if costs are awarded, that they should be no more than about $15,000 for both motions, divided equally between the two defendants. In my view, success was not divided. The waiver of solicitor-client privilege issue, while important, accounted for no more than one fifth of the time and effort of counsel on both sides. Four-fifths of the motion was directed to the more intricate question of relevancy at the common issues stage of a class action proceeding. I am therefore inclined to conclude that a costs award of $20,000 (four-fifths of $25,000) would be fair and appropriate.

[ 5 ] As counsel well understand, my primary obligation as a judge in fixing costs is to consider the factors set out in Rule 57.01(1) and fix an amount that is fair and reasonable to the unsuccessful party in the particular proceedin g rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council of Ontario, (2004) 71 O.R. (3d) 291 at para. 26 . Having considered these factors, including the Court of Appeal’s admonition in Boucher , I find it fair and reasonable to fix costs at $20,000 all-inclusive to be divided equally between GMCL and CBB. [2]

[ 6 ] Order to go accordingly.

Belobaba J.

Date: December 28, 2012

[1] For example: Trillium, the responding party, had five lawyers attending on this productions motion. Because of the large number of gowned counsel in attendance from both sides, I had to move the hearing to a more spacious criminal courtroom.

[2] That is, $10,000 in costs shall be paid by General Motors of Canada Limited and a further $10,000 shall be paid by Cassels Brock & Blackwell for a total of $20,000, both payments to be made forthwith to Trillium Motor World.