Kidd v. The Canada Life Assurance Company, 2015 ONSC 1287
COURT FILE NO.: 05-CV-287556CP
DATE: 20150226
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID KIDD, ALEXANDER HARVEY,
JEAN PAUL MARENTETTE, GARRY C. YIP, LOUIE NUSPL, SUSAN HENDERSON and LIN YEOMANS
Plaintiffs
– and –
THE CANADA LIFE ASSURANCE COMPANY, A.P. SYMONS, D. ALLEN LONEY and JAMES R. GRANT
Defendants
Mark Zigler, for the Plaintiffs, David Kidd, Alexander Harvey, Jean Paul Marentette, Susan Henderson and Lin Yeomans
Jeff Galway, for the Defendant, The Canada Life Assurance Company
Patrick Mazurek, for certain objectors
Fred Taggart, David V. Newton, and R. Phil Davy, objectors
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION – Objectors’ Costs
[1] This is a claim for costs of $222,515, all inclusive, by a group of objectors that opposed the approval of a settlement in a class proceeding and who were represented by Patrick Mazurek.
[2] For the reasons that follow, I award the objectors $82,500, all inclusive.
[3] I begin by saying that the extraordinarily-untypical circumstances of the chronicle of this class action do not make this an appropriate case to establish any legal principles or policy about awarding costs to objectors who participate at a settlement approval hearing.
[4] I, rather, approach this case simply on the basis that as part of the ultimate settlement, the Defendant, Canada Life, budgeted $100,000 for this possible expense. In approving what was a revised settlement agreement, I regarded this possible expenditure as sensible, fair, and reasonable, and at paragraphs 74 to 76, I made the following direction as part of my Reasons for Decision (Kidd v. The Canada Life Assurance Company, 2014 ONSC 457):
As I noted above, the steps taken before the first fairness hearing were unprecedented and unusual. The run-up to this fairness hearing was more typical, with arms- length negotiations and the involvement of the representative plaintiffs, a notice program, disclosure of the settlement terms, and an opportunity to object. In my opinion, there was no procedural unfairness before this approval hearing.
Moreover, a large group of objectors were represented by Mr. Mazurek, and his involvement and his scrutiny of the settlement proposal at the fairness hearing meant that there was a level procedural playing field for the objectors.
I pause here to say that Mr. Mazurek should be paid for his services out of the settlement funds up to the $100,000 that was budgeted for this disbursement. If the parties cannot agree about Mr. Mazurek’s fee, I will settle it by submissions in writing.
[5] As I noted in my Reasons for Decisionthe case at bar is an unprecedented class action saga. To repeat, by order dated October 26, 2011, I certified the action as a class action for settlement purposes; see Kidd v. Canada Life, 2011 ONSC 6324. By order dated February 6, 2012, I approved the settlement; see Kidd v. Canada Life, 2012 ONSC 740, but the settlement was never implemented because of unpredicted economic forces and the parties negotiated a revised settlement. By order dated March 28, 2013, I dismissed the motion for approval of the revised settlement; see Kidd v. The Canada Life Assurance Company, 2013 ONSC 1868. Then, with the support of the Plaintiffs, Canada Life appealed my decision refusing the revised settlement agreement, but the appeal was not argued, because the parties agreed to a third version of their settlement agreement.
[6] The Court of Appeal awarded the objectors, who had been granted intervenor status and who were represented by Mr. Mazurek in the ultimately abandoned appeal, costs of $17,500.
[7] This was the untypical background to the participation of the group of objectors in what was an unheard of third discrete settlement approval hearing.
[8] Class Counsel and the Plaintiffs took no position with respect to costs for the objectors, apart from submitting in a letter to me dated February 12, 2015 that:
The plaintiffs take no position on the quantum of costs that should be awarded, but note that the written reasons state that “that Mr. Mazurek should be paid for his services out of the settlement funds up to the $100,000 that was budgeted for this disbursement.” A reasonable estimate was budgeted by Canada Life, which was endorsed by the Court as a fair limit.
[9] When I made the costs direction in my Reasons for Decision, I envisioned that Mr. Mazurek would be able to justify fees for his role representing a group of objectors up to the balance of $82,500, all inclusive, left from the $100,000 that had been budgeted for this expenditure. He has done so, and I accordingly award the objectors $82,500, all inclusive.
[10] It is simply “not on” for the objectors to seek $222,515, all inclusive. Mr. Mazurek was never appointed Class Counsel, and it would be pointlessly ironic to discuss who is to take credit for the fact that the third version of Settlement Agreement was approvable notwithstanding the continuing opposition of the objectors.
[11] The settlement was approved for the reasons that I expressed in my approval decision. My direction cannot be clearer. I already decided the maximum quantum of costs for the objectors in those reasons.
[12] It is also “not on” for Canada Life to interpret my direction in the restrictive way that it has done in its written submissions.
[13] Canada Life relies on the formal settlement approval order that added the qualifier “for his services preparing and attending on the motion” in support of an argument that the only costs awardable are those reasonably incurred between the date the objectors became aware of the terms of the revised settlement at the end of November 2013 and the return of the motion some six weeks later.
[14] The formal Order stated:
THIS COURT FURTHER ORDERS THAT Patrick Mazurek (“Mazurek”), who acted as counsel for certain objecting class members, be paid out of the settlement funds for his services in preparing for and attending on the motion in an amount to be fixed by this Court (unless otherwise agreed upon), which amount shall not exceed $100,000 inclusive of any amount paid to Mazurek in respect of his representation objecting class members in the proceeding in the Court of Appeal for Ontario bearing Court File Number C56991.
[15] The formal Order does not impose any temporal limitation or filter as to when services related to the preparing for and attending at the settlement approval motion become unrecoverable, and I see nothing unfair or inappropriate by including expenditures associated with taking instructions from the objectors and representing them in the circumstances that were the run-up to the abandonment of the appeal and the third settlement approval motion.
[16] Those services, up to a limit of $82,500 can fairly be described as preparing for and attending on the settlement approval motion.
[17] For the above reasons, I award the objectors costs of $82,500, all inclusive.
Perell, J.
Released: February 26, 2015
Kidd v. The Canada Life Assurance Company, 2015 ONSC 1287
COURT FILE NO.: 05-CV-287556CP
DATE: 20150226
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID KIDD, ALEXANDER HARVEY, JEAN PAUL MARENTETTE, GARRY C. YIP, LOUIE NUSPL, SUSAN HENDERSON and LIN YEOMANS
Plaintiffs
‑ and ‑
THE CANADA LIFE ASSURANCE COMPANY, A.P. SYMONS, D. ALLEN LONEY and JAMES R. GRANT
Defendants
REASONS FOR DECISION – Objectors’ Costs
Perell, J.
Released: February 26, 2015