ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-CV-432919CP
DATE: 20140226
BETWEEN:
BOB BRIGAITIS and CINDY RUPERT
Plaintiffs
– and –
IQT, LTD., c.o.b. as IQT SOLUTIONS, IQT CANADA, LTD., JDA PARTNERS LLC, IQT, INC., ALEX MORTMAN, DAVID MORTMAN, JOHN FELLOWS and RENAE MARSHALL
Defendants
Andrew Eckart, for the Plaintiffs
Jeffrey E. Goodman and Jodi Gallagher Healy, for the IQT, Inc., IQT Canada Ltd., JDA Partners LLC, David Mortman and Alex Mortman
HEARD: In Writing
Proceeding under the Class Proceedings Act, 1992
PERELL, J.
REASONS FOR DECISION - COSTS
[1] Pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, the Plaintiffs, Bob Brigaitis and Cindy Rupert, brought a motion for certification. The Defendants IQT, Inc., IQT Canada, Ltd., JDA Partners LLC, David Mortman, and Alex Mortman resisted the certification motion and brought a Rule 21 cross-motion.
[2] In Reasons reported as Brigaitis v. IQT, Ltd. c.o.b. as IQT Solutions, 2014 ONSC 7, I granted the Plaintiffs’ certification motion. I held that the Class Members’ claims for negligence, conspiracy, inducing breach of contract, and for an oppression remedy were free-standing claims not before the OLRB and these claims were suitable for a class action. I held that the Section 97 Group’s claims before the OLRB did preclude wrongful dismissal claims being advanced in the class action but, the exclusion of this Group’s wrongful dismissal claims did not preclude the Section 97 Group from participating in the class action for the other claims shared by all former employees. I concluded that the Plaintiffs’ proposed class action should be certified: (a) for the 521 dismissed employees to advance claims of negligence, conspiracy, inducing breach of contract, and for an oppression remedy; and (b) for the Assessed Group and the No DOTP Group to advance wrongful dismissal claims. I concluded that the Plaintiffs’ claims for breach of fiduciary duty and aiding or abetting a breach of fiduciary duty should not be certified, and those claims should be dismissed.
[3] The Plaintiffs seek costs on a partial indemnity basis of $64,013.93 inclusive of taxes and disbursements of $2,171.85.
[4] The Plaintiffs made an offer to settle the certification motion before the hearing of the motion for $50,000 but in the circumstance of this case, I regard this offer as not pertinent to the exercise my discretion with respect to costs.
[5] The Defendants submit that the Plaintiffs’ request for partial indemnity costs should be refused and that there should be no costs awarded in light of: (1) the Defendants’ significant success on the Rule 21 motion; (2) their reasonable and productive resistance to the certification motion which led to a properly structured class action; and (3) the circumstance that the Plaintiffs served amended material on the eve of the hearing and shifted the basis for their oppression remedy with the result that costs were wasted. In the alternative, the Defendants submit that in the circumstances it would be appropriate for the court to exercise its discretion to order a significantly reduced costs amount in the cause with respect to the Plaintiffs’ oppression remedy or conspiracy to divert asset claims.
[6] In my opinion, the Plaintiffs’ claim for partial indemnity costs would be appropriate only if one ignored the fact that while successful, the Plaintiffs’ success fell short of their aspirations and the Defendants were successful in having the breadth of the Plaintiffs’ claims significantly narrowed and in having several causes of actions dismissed.
[7] Without making a distributive costs award, which I am not doing, the Defendants’ successes justify a reduction of the partial indemnity award in the case at bar to $50,000, all inclusive.
[8] The costs awarded are payable forthwith to reflect the Plaintiffs’ overall success on the certification motion.
Perell, J.
Released: February 26, 2014
COURT FILE NO.: 11-CV-432919CP
DATE: 20140226
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BOB BRIGAITIS and CINDY RUPERT
Plaintiffs
‑ and ‑
IQT, LTD., c.o.b. as IQT SOLUTIONS, IQT CANADA, LTD., JDA PARTNERS LLC, IQT, INC., ALEX MORTMAN, DAVID MORTMAN, JOHN FELLOWS and RENAE MARSHALL
Defendants
REASONS FOR DECISION - COSTS
Perell, J.
Released: February 26, 2014