ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-46287
DATE: 2012/02/07

BETWEEN:

OTTAWA POLICE ASSOCIATION
Plaintiff (Moving Party)

– and –

OTTAWA POLICE SERVICES BOARD, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, OMERS ADMINISTRATION CORPORATION, and ONTARIO PUBLIC SERVICE PENSION BOARD
Defendants (Responding Parties)

Allan O’Brien, Christopher Rootham for the Plaintiff

Charles V. Hofley and Lisa J. Mills, for the Defendant (Responding Party), Ottawa Police Services Board
Dennis Brown, Q.C. and Judie Im, for the Defendant (Responding Party), Her Majesty the Queen in Right of Ontario as represented by the Ontario Provincial Police
David A. Stamp and Kevin O’Brien, for the Defendants (Responding Parties) OMERS Administration Corporation and Ontario Public Service Pension Board

HEARD: By written submissions

DECISION ON COSTS

r. smith j.

Positions of Parties

[ 1 ] The plaintiff seeks costs of $15,495.02 on a partial indemnity basis. It submits that it was successful on the main issue namely, that the action could proceed as a representation proceeding under Rule 12.08 of the Rules of Civil Procedure (the “ Rules ”).

[ 2 ] All the defendants submit that the plaintiff should not be awarded costs because success was divided, the issue involved novel and complex issues, and that there was limited jurisprudence related to motions under Rule 12.08.

[ 3 ] The Ottawa Police Board further submits that the plaintiff’s conduct unduly increased the time and expense by initially relying on both Rule 10.01 and Rule 12.08 and abandoning its reliance on Rule 10.01 at the motion.

[ 4 ] In addition, the defendants submit that the plaintiff sought alternate relief in his reply submission, seeking to name one or more individual members of the group if 74 officers, if the Ottawa Police Association (“OPA”) was not allowed to be the representative plaintiff. This claim for alternate relief was not specifically set out in the plaintiff’s Notice of Motion, however, it was the position taken by the defendants.

Factors

[ 5 ] [5] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offers to settle, the time spent, the hourly rate claimed and the principles of proportionality and indemnity, and the amount that a losing party would reasonably expect to pay.

Success

[ 6 ] The plaintiff submits that it has been successful in obtaining a representative order under rule 12.08, and therefore should be awarded costs of the one and one half day motion on a partial indemnity basis.

[ 7 ] The defendants all submit that success was divided and therefore no costs should be awarded to the plaintiff.

[ 8 ] The following issues were argued at the motion:

(a) Should the motion be denied because the OPA was not a union in accordance with Rule 12.08?

(b) Should the motion be denied because the OPA was not a person who was a member of the union?

(c) Did the plaintiff’s claim meet the test for certification under the Class Proceedings Act ? and

(d) The Attorney General also argued that the plaintiff had not provided sufficient particulars of its claim for the negligent misrepresentation as required by Rule 25.

Issue (a)

[ 9 ] The plaintiff was successful on issue (a), as I held that the OPA was a union within the meaning of Rule 12.08.

Issue (b)

[ 10 ] The defendants were successful on issue (b) as I agreed with their submissions that Rule 12.08 only permitted one or more persons who were members of a trade union to bring a proceeding on behalf of them all. As the OPA was not a member of the trade union and therefore it could not be named as the representative plaintiff in accordance under Rule 12.08.

[ 11 ] In his reply submissions counsel for the plaintiff sought alternative relief to name one or more individual members as representative plaintiffs, if I agreed with the defendants’ submissions that the OPA could not be appointed as the representative plaintiff. In the further alternative, the plaintiff further requested leave to amend his statement of claim to add all 74 officers as plaintiffs if the OPA and one or two individual members of the group were not allowed to be appointed as representative plaintiffs.

[ 12 ] While the alternative relief seeking to name one or two individual members instead of the OPA as representatives was not set out in the notice of motion, the issue whether the OPA could be appointed or whether only individual members of the union were eligible to be appointed as a representative of the group was fully argued. I ruled in favour of the defendants’ position that Rule 12.08 only permitted individual members of a union and not the union itself to bring a representative claim. I ultimately granted the alternative relief requested by the plaintiff based on the successful argument of the defendants. I therefore find that the defendants were successful on issue (b).

Issue (c)

[ 13 ] The plaintiff was also successful on issue (c), which was the main issue argued before me. I found that the proposed representative action met the test for certification of a class proceeding. Most of the time in oral argument was spent on issue (c).

[ 14 ] However, the defendants were also partially successful on this issue which was complex and required an analysis of a number of issues including determining if there were suitable common issues and whether the representative proceeding was the preferable procedure as the number of common issues were greatly reduced. The reduction in the number of common issues made the proceeding more focused and manageable as a representative proceeding.

Issue (d)

[ 15 ] The Attorney General also successfully argued that the particulars of the tort of negligent misrepresentation had to be pleaded pursuant the Rule 25. The plaintiff was permitted to amend its statement of claim to plead the required particulars which had been outlined in oral argument namely that the negligent misrepresentation was one of omission to fully advise members of the consequences to their pensions if they transferred from the OPP to the Regional Board.

[ 16 ] In summary, I find that while success was divided the plaintiff was more successful as a representative order was ultimately granted albeit to individual members and on more focussed common issues.

Complexity and Importance

[ 17 ] The motion was important to the parties. The matter was also complex as the motion took a day and one half to argue, and there is very limited jurisprudence under Rule 12.08.

Conduct of the Parties

[ 18 ] The defendants submit that they were forced to incur additional expenses as a result of the plaintiff initially relying on Rule 10.01, as well as Rule 12.08 in its notice of motion. However, it its factum, the OPA only addressed Rule 12.08. The plaintiff’s factum was served approximately three months before the motion was argued and therefore I will not reduce the costs award for this reason. I agree with the plaintiff’s submission that limiting its argument to only Rule 12.08 narrowed the scope of the issues to be addressed.

[ 19 ] The plaintiff did not particularize its claim for negligent misrepresentation by stating that it was based on negligent misrepresentation by omission. The plaintiff only clarified its position at the hearing of the motion. This resulted in a reduction of the number of proposed common issues some from fifteen to three. The plaintiff’s failure to plead the particulars of the negligent misrepresentation caused the defendants to incur some unnecessary costs.

[ 20 ] The plaintiff also did not claim the alternate relief in its motion seeking to have one or more individuals appointed as representatives of the group instead of the OPA. However, the issue was fully argued had the defendants successfully argued that the OPA could not be appointed and that only one or more of the individual members could be appointed provided the requirements for certification of a class proceeding were met. This omission did not cause any additional expenses to be incurred because the plaintiff adopted the defendant’s position in his alternative claim for relief.

Hourly Rate and Time Spent

[ 21 ] The defendants did not contest the hourly rates or the time spent by the plaintiff and I agree that the amount claimed is very reasonable considering the complexity of the issues. I also find that the amount claimed would be consistent with what an unsuccessful party would reasonably expect to pay.

Disposition

[ 22 ] For the above reasons, and in particular because the success was divided but the plaintiff was more successful, the defendants are ordered to pay costs of $7,500 plus HST, plus of disbursements of $1,500, inclusive of HST.

Mr. Justice Robert J. Smith

Released: February 7, 2012

COURT FILE NO.: 09-46287
DATE: 2012/02/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: OTTAWA POLICE ASSOCIATION Plaintiff (Moving Party) – and – OTTAWA POLICE SERVICES BOARD, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, OMERS ADMINISTRATION CORPORATION, and ONTARIO PUBLIC SERVICE PENSION BOARD Defendants (Respondents)

DECISION ON COSTS

R. Smith J.

Released: February 7, 2012