ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-376511CP
DATE: 20141215
BETWEEN:
JEFFREY LIPSON
Plaintiff
– and –
CASSELS BROCK & BLACKWELL, LLP
Defendant
– and –
MINTZ & PARTNERS, DELOITTE & TOUCHE, GLENN F. PLOUGHMAN, SHELLEY SHIFMAN, PRENICK LANGER, TMK FINANCIAL GROUP LTD., GARDINER ROBERTS, THE ESTATE OF RONALD J. FARANO, DECEASED, JOHN DOE 1-100, JOHN DOE INC. 1-100, JOHN DOE PARTNERSHIP 1-100 and JOHN DOE 1-100
Third Parties
J. Adam Dewar for the Plaintiff
Shara N. Roy for the Defendant
Tim Gleason for the Third Parties, Gardiner Roberts and The Estate of Ronald J. Farano, Deceased
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] In this class action under the Class Proceedings Act, 1992, S.O. 1992, c. C.6, on a motion for an affidavit of documents, the Defendant Cassels Brock & Blackwell, LLP, sought production of possibly privileged documents from Thorsteinssons LLP, which documents were in the power, possession or control of the Plaintiff, Mr. Lipson.
[2] The Third Parties Gardiner Roberts and The Estate of Ronald J. Farano, Deceased, sought production of the Thorsteinssons LLP documents and documents from Davies Ward Phillips & Vineberg LLP also in the power, possession, or control of Mr. Lipson.
[3] I granted the motion with respect to the Thorsteinssons documents but not with respect to the Davies Ward documents. See Lipson v. Cassels Brock & Blackwell, LLP, 2014 ONSC 6106 and 2014 ONSC 6163.
[4] In paragraphs 126 to 128 of my Reasons for Decision, I dealt with costs as follows:
With respect to costs, my inclination is to make no order as to costs or to simply order the costs of these motions be in the cause.
Mr. Lipson and Class Counsel understandably had to protect the Class Members’ solicitor and client privilege and it was appropriate for them to resist the motions especially because the case law is nascent about solicitor and client privilege in the context of a class action.
If the parties, however, cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of Cassels Brock, Gardiner Roberts, and Mr. Farano’s Estate within 20 days of the release of these Reasons for Decision followed by Mr. Lipson’s submissions within a further 20 days.
[5] The parties were not able to agree about costs, and they made submissions in writing.
[6] Cassels Brock & Blackwell requested that it be awarded $12,000, all inclusive, in the cause. Gardiner Roberts and The Estate of Ronald J. Farano, Deceased, requested they be awarded $10,209.67, all inclusive, in the cause. Mr. Lipson submitted that the appropriate order is to make no order as to costs or in the alternative, he submitted that the moving parties be awarded $5,000 each in the cause.
[7] Having considered the submissions of the parties in support of their respective positions, in my opinion, the appropriate order is to award each of Cassels Brock & Blackwell and the Gardiner Roberts and the Estate of Ronald J. Farano Third Parties $10,000, all inclusive, in the cause.
[8] As I now view the matter, the moving parties were successful on a motion that, like the certification motion, needed to be brought to move the action forward, and they were successful. A $10,000 award is reasonable having regard to the importance of the issues engaged and the possible importance of the documents to the litigation.
[9] I do not think that the costs award, however, should be payable forthwith and rather costs should be payable in the cause. In the circumstances of this case, costs in the cause payable to the successful moving parties is the fair result for a motion that the unsuccessful responding party had no choice but to resist, given the importance of the principle of solicitor and client privilege. If, however, Mr. Lipson is successful in the ultimate cause, then the moving parties will not recover the costs. Conversely, if he is unsuccessful, it is fair that he pay costs for the production motion. Order accordingly.
Perell, J.
Released: December 15, 2014
COURT FILE NO.: CV-09-376511CP
DATE: 20141215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFFREY LIPSON
Plaintiff
– and –
CASSELS BROCK & BLACKWELL, LLP
Defendant
– and –
MINTZ & PARTNERS, DELOITTE & TOUCHE, GLENN F. PLOUGHMAN, SHELLEY SHIFMAN, PRENICK LANGER, TMK FINANCIAL GROUP LTD., GARDINER ROBERTS, THE ESTATE OF RONALD J. FARANO, DECEASED, JOHN DOE 1-100, JOHN DOE INC. 1-100, JOHN DOE PARTNERSHIP 1-100 and JOHN DOE 1-100
Third Parties
REASONS FOR DECISION - COSTS
PERELL J.
Released: December 15, 2014