ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 06-CV-35171
DATE: 03/06/2013
BETWEEN:
DORIS DUCHARME
Plaintiff
– and –
SOLARIUM DE PARIS INC.
Respondent
William J. Sammon, for the Plaintiff
Brian C. Elkin, for the Defendant
HEARD: By written submissions
DECISION REGARDING COSTS
R. Smith J.
Overview
[1] The representative plaintiff brought a motion to add two additional common issues in the class proceeding, as a result of receiving an expert report stating that all of the a solariums did not comply with the Building Code and had to be demolished. The motion also sought directions on how to give notice to the potential class members and approval of that notice.
Positions
[2] The plaintiff seeks costs for a motion to add additional common issues in a class proceeding and to determine the method of giving notice to members of the class. The plaintiff seeks costs on a complete indemnity basis, as she alleges that the defendant has engaged in a course of conduct of delaying the proceedings and by obfuscating who were the members of the class. The plaintiff seeks costs on a complete indemnity basis in the amount of $33,805.22 alternatively costs on a partial indemnity basis in the amount of $18,282.22. The defendant submits that no costs should be awarded to either side as success on the motion was divided.
Factors
[3] 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 offer to settle, the principle of indemnity, hourly rate claimed the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.
Success
[4] In this case the representative plaintiff was successful in adding a common issue concerning the appropriate remedy and was unsuccessful in adding a common issue for damages. The plaintiff was also successful in obtaining an order that notice be given to class members by publishing notice in a newspaper. The defendants successfully opposed adding damages as a common issue.
[5] I do not agree with the defendant’s submission that the court raised and added a new common issue as the plaintiff’s second proposed common issue was “what is the appropriate remedy?” The issue of the appropriate remedy was clarified by the court to include whether all of the solariums had to be demolished or was there some other appropriate remedy. The issue of to whether demolition was an appropriate remedy was a common issue was fully argued by both counsel at the motion.
[6] The plaintiff was unsuccessful in having a common issue added for damages, as this had been previously denied by Charbonneau J. in his certification Order.
[7] On balance, I find that the plaintiff was much more successful on the motion as it succeeded on the main issue common issue related to remedy, as recommended by Dr. Pillette’s report, namely because in his opinion that all of the solariums did not comply with the Ontario Building Code and had to be demolished. This issue occupied most of the time spent by counsel in submissions.
[8] The issue of whether damages could be added as a common issue took up a small amount of time as it had already been denied by Charbonneau J. and there was no information in Dr. Pillette’s report related to damage issue.
[9] The issue of whether notice to potential class members should be given by publishing motion in a newspaper was also resolved in favour of the plaintiff.
Importance and Complexity
[10] Motions to add common issues in a class proceeding are complex issues and were important to the parties.
Unreasonable Conduct of any Party
[11] The plaintiff alleges that the defendant unreasonably delayed the hearing of the motions. The defendant requested an adjournment in order to obtain an expert report to respond to Dr. Pillete’s report and as a result the matter was delayed for approximately 6 months. The defendant ended up not obtaining or in any event not serving any report to respond to the Pillette report. The motion was also adjourned on several occasions due to the time scheduled being insufficient, and on one occasion due to my unavailability. These adjournments were not caused by the defendant.
[12] Plaintiff further alleges that the defendant has engaged in a course of conduct to obfuscate the number of class members in the class by giving different evidence under oath on several occasions concerning the number of solariums sold in Ontario. The order to publish notice to class members in a newspaper was made in large part due to the defendant’s conduct of giving different answers about the number of solariums sold in Ontario on several different occasions. The Court ordered that publication should be made in a newspaper to ensure that all potential class actions were given proper notice. However, I find that the defendants conduct was not so blameworthy as to justify costs on a substantial or complete indemnity basis.
Scale of Costs
[13] I find that the defendant’s conduct was not so egregious as to justify an award of costs on a substantial indemnity or complete indemnity scale, therefore costs will be awarded on a partial indemnity rate.
Hourly Rates and Time Spent
[14] The defendant disputes the complete indemnity rate claimed by the plaintiff’s counsel of $600.00 per hour, however it does not dispute the partial indemnity rate claimed at $320.00 per hour for a lawyer with plaintiff counsel’s experience. Counsel is very experienced and certifying common issues in a class proceeding is a complex matter and on this basis I find that the partial indemnity rate of $320.00 per hour is reasonable.
The Amount the Unsuccessful Party Would Reasonably Expect to Pay
[15] Neither party has made any submissions or provided any evidence of their reasonable expectation of what they expected to pay in costs if unsuccessful. However, the defendant is a sophisticated manufacturer or distributor of solarium products and counsel for the defendant is a member of one of Canada’s large law firms and both are aware that a substantial amount of this was spent preparing and arguing the motions.
[16] The defendant has also not provided its bill of costs or filed a Cost Outline in form 57(b). As a result I have no evidence of the defendants reasonable expectations other than the matter is complex and it has been delayed over almost a two year period necessitating three appearances in court. I conclude that the defendant would reasonably expect to pay costs on a partial indemnity basis if the plaintiff had been completely successful in the amount claimed of $16,037.00 plus HST and disbursements.
Disposition
[17] Having considered all of the above factors, and that the success was divided but the plaintiff was substantially successful, the defendant is ordered to pay costs to the representative plaintiff in the amount of $13,000.00 plus applicable HST and disbursements of $161.22.
R. Smith J.
Released: 03/06/2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DORIS DUCHARME
Plaintiff
– and –
SOLARIUM DE PARIS INC.
Respondent
DECISION REGARDING COSTS
R. Smith J.
Released: 03/06/2013