COURT FILE NO.: CV-10-408131-00CP
DATE: 20130916
ONTARIO SUPERIOR COURT OF JUSTICE
PROCEEDING UNDER the Class Action Proceedings Act, 1992, S.O. 1992, C. 6
BETWEEN:
Sherry Good
Plaintiff
– and –
TORONTO POLICE SERVICES BOARD and ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
Defendants
Eric Gillespie, Murray Klippenstein and Kent Elson, for the Plaintiff
Kevin McGivney and Cheryl Woodin, for the defendant Toronto Police Services Board and Regional Municipality of Peel Police Services Board
Charleen Brenzall and Nanette Rosen, for the defendant Attorney General of Canada
Bill Manuel and Tom Schreiter, for the defendant Her Majesty the Queen in Right of Ontario
Paul J. Pape and Shantona Chaudhury for the Law Foundation of Ontario
HEARD: In Writing
C. hORKINS J.
[1] In reasons released May 24, 2013, I dismissed the plaintiff’s motion to certify this action as a class proceeding pursuant to s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("Class Proceedings Act").
[2] On the consent of the parties, these reasons only deal with the costs of the defendant Toronto Police Services Board (“Toronto”). The plaintiff and Toronto have not been able to agree on costs. Written submissions have been exchanged.
[3] Toronto’s fees on a partial indemnity basis total $543,895.50 (the actual fees incurred are not revealed). Disbursements total $23,233.37. Allowing for applicable tax, the total is $637,835.29. Toronto has significantly reduced its request for costs to $370,000 for fees, $23,233.37 for disbursements plus applicable taxes.
[4] The plaintiff confirms that the Class Proceedings Fund (the 'Fund') provided financial support to her in this case. It follows that the Fund is financially responsible for costs awards against the plaintiff, pursuant to s. 59.4 of the Law Society Act, R.S.O. 1990, c. L.8. The plaintiff and the Fund made a joint submission on costs (reference in these reasons to the plaintiff includes the Fund).
[5] It is the plaintiff’s position that there should be no costs order in favour of Toronto for three reasons:
(i) The action raised a novel point of law.
(ii) The action involved a matter of public interest.
(iii) The “acknowledged shortcomings” of the Toronto police during the G20 Summit.
[6] If costs are ordered the plaintiff does not provide an amount that in her view is fair and reasonable.
Legal framework
[7] The source of judicial discretion to award costs is set out in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 that states:
131.(1) 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.
[8] In Pearson v. Inco Ltd., 2006 7666 (ON CA), [2006] O.J. No. 991 (C.A.) at para. 13 (“Pearson”) the court identified the following principles for fixing costs on a certification motion:
(1) Ontario, unlike other class proceedings jurisdictions such as British Columbia, has not sought to interfere with the normal rule that costs will ordinarily follow the event. [Citations omitted.]
(2) The costs must reflect what is fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) [(“Boucher”)] ….
(3) The costs should, if possible, reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance. [Citations omitted.]
(4) A motion for certification is a vital step in the proceeding and the parties expect to devote substantial resources to prosecuting and defending the motion. [Citations omitted.]
(5) The costs expectations of the parties can be determined by the amount of costs that an unsuccessful party could reasonably expect to pay. [Citations omitted.]
(6) The views of the motion judge concerning the complexity of the issues and what is fair and reasonable.
(7) The case raised an issue of public importance.
(8) A fundamental object of the [Class Proceedings Act] is to provide enhanced access to justice. [Citations omitted.]
[9] When exercising its discretion under s. 131(1) Courts of Justice Act, s. 31(1) of Class Proceedings Act states that the court “may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest.” The plaintiff argues that this case raised a novel point of law and involved matters of public interest and therefore no costs order should be made against her.
[10] Even if a factor in s. 31 is engaged, it does not automatically follow that there should be no costs awarded. This was confirmed in Ruffolo v. Sun Life Assurance Co. of Canada, 2009 ONCA 274, 68 C.P.C. (6th) 322 at para. 35 where the court stated:
Even if the presence of one or more of the s. 31(1) criteria is found to exist, a court need not refrain from awarding costs to a successful defendant in a class action. Otherwise, the continuing application of the "costs follow the event" regime to class proceedings would be rendered meaningless. Whether a "no costs" order, or some adjustment to the costs as claimed, is appropriate to reflect the s. 31(1) factors will depend on the circumstances of each case.
[11] Recently this point was reinforced in McCracken v. Canadian National Railway Co., 2012 ONCA 797 at para. 11 as follows:
On the other hand, it must be recognized that class actions come at a cost to defendants. Indemnifying parties - such as class counsel or the Law Foundation - must assess the risks of an unsuccessful litigation strategy and balance them against the possible rewards: see Singer v. Schering-Plough Canada Inc., 2010 ONSC 1737, 87 C.P.C. (6th) 345, at para. 20. The risk of adverse cost awards must factor into the decision to fund and indemnify a proceeding. The CPA was never intended to insulate representative plaintiffs from the possible costs consequences of unsuccessful litigation: David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2008), 2008 ONCA 703, 93 O.R. (3d) 257 (C.A.), at para. 29.
[12] Lastly, the fact that the Fund will indemnify the plaintiff for any costs award does not eliminate the need to consider access to justice considerations. As the Court of Appeal stated in McCracken at para.10, “The Fund was created to facilitate access to justice. If the Fund were required to absorb steep cost awards imposed on litigants even though the proposed action displays the factors in s. 31(1) of the CPA, this would have an undesirable chilling effect on class proceedings.”
[13] In considering the appropriate award of costs (if any) in this case, I am guided by the above legal framework.
analysis
[14] As an overview, this is not a case where there should be no costs ordered against the plaintiff. While the action raised a matter of public interest, the flawed nature of this certification motion dictates that reasonable costs should be ordered.
(continued exactly as in the source through paragraph [48]…)
[48] I make the following costs order against the plaintiff in favour of Toronto. I fix the fees of Toronto at $200,000 and allow disbursements of $23,233.37. Applicable taxes are in addition.
___________________________ C. Horkins J.
Released: September 16, 2013
COURT FILE NO.: CV-10-408131-00CP
DATE: 20130916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sherry Good
Plaintiff
– and –
TORONTO POLICE SERVICES BOARD and ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
Defendants
REASONS FOR COSTS DECISION
C. Horkins J.
Released: September 16, 2013