Sankar v. Bell Mobility, 2015 ONSC 1976

CITATION: Sankar v. Bell Mobility, 2015 ONSC 1976

COURT FILE NO.: CV-12-452867-CP

DATE: 20150402

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Celia Sankar / Plaintiff

AND:

Bell Mobility Inc. / Defendant

BEFORE: Justice Edward P. Belobaba

COUNSEL: Louis Sokolov, Jordan Goldblatt and Jean-Marc Leclerc for the Plaintiff

Steve Tenai for the Defendant

HEARD: January 28, 2015

Proceeding under the Class Proceedings Act, 1992

Costs award on Summary judgment motion

Reasons for Decision

[1] In a decision released on February 12, 2015, I granted the defendant’s motion for summary judgment and, in essence, dismissed this class action in its entirety.[^1] I found that Bell did not breach the terms of the pre-paid cell phone “top-up” agreements. I further found that the expiry and forfeiture of the unused credit balances was not contrary to the provincial Gift Card Regulation.

[2] I have now reviewed the parties’ cost submissions. I note that the plaintiff and the Law Foundation of Ontario (that provided financial support via its Class Proceedings Fund) have forwarded a joint submission.[^2]

[3] The successful defendant asks for $154,000 all-inclusive on a partial indemnity basis. The defendant points out that the class action was seeking more than $200 million in damages and that the summary judgment motion along with the certification motion[^3] (won by the plaintiff) was hard fought. The defendant notes that I awarded $150,000 in costs to the plaintiff on the certification motion.[^4] It would be “disproportionate and inequitable” says the defendant to award less on a summary judgment motion that in essence resulted in the dismissal of the class action in its entirety.

[4] The plaintiff and the Law Foundation submit that the costs award should not exceed $60,000. They argue that the defendant’s $154,000 request is excessive and unreasonable. There were no facts in dispute, says the plaintiff, no cross-examinations, and just two legal issues - whether Bell Mobility breached its contract with the class members, and whether the expiry and forfeiture of pre-paid credits was contrary to the provincial Gift Card Regulation. The hearing was completed in less than a day. And, in comparison, the plaintiff’s costs request (had she prevailed) would have been significantly lower than the defendant’s. Further, says the plaintiff, the overall costs award should be reduced under s. 31(1) of the Class Proceedings Act[^5] because the action raised a novel point of law, namely the interpretation of the Gift Card Regulation, and involved a matter of public interest.

[5] Before deciding the costs award, several preliminary points are in order.

[6] First, I do not accept the defendant’s general proposition that in the class action context the costs awarded on a summary judgment motion should always be at least as large as the costs that were awarded on certification. In my experience, a certification motion can be “relatively complex” and “above average in difficulty”[^6] (as was the case here) and yet the subsequent summary adjudication of the common issues can be reasonably straight-forward (as was the case here.) There is simply no reason to assume that the summary adjudication of the certified common issues will always be as costly or more costly that the certification motion.

[7] Secondly, I do not accept the plaintiff’s assertion that the length of the in-court hearing is a measure of the motion’s complexity. It is true that I heard this summary judgment motion in a half-day. But I was able to do so because I had spent many hours beforehand preparing for the hearing. Actual hearing time, at least in my court, is not a meaningful measure of anything. Many complicated motions that could take days to argue before a judge who is not prepared or who otherwise enjoys hearing lawyers repeat what is in their factum, will often require very little court time before a judge who has reviewed the written material in detail.

[8] Thirdly, I can see from the competing costs outlines that little will be gained in reviewing the heated debate between the parties about whether the defendant’s dockets in certain areas were unreasonable or excessive. It is sufficient for me to note that the defendant is claiming $132,317 on a partial indemnity basis (exclusive of disbursements and taxes) and the plaintiff’s bill of costs for roughly the same work is about $104,259 (exclusive of disbursements and taxes). In other words, a costs award of $105,000 would not be unreasonable. Or, if I split the difference between them, a costs award in the range of $115,000 (exclusive of disbursements and taxes and subject to the novelty and public interest considerations as discussed below) would not be unexpected or otherwise outside the appropriate norm.

[9] Turning then to the s. 31(1) considerations: whether the class proceeding raised a novel point of law or involved a matter of public interest. First, novelty. It is true that the scope and content of the Gift Card Regulation, indeed the very meaning of the words “gift card,” have never been judicially considered. But this alone is not enough to establish novelty. I agree with Spence J.’s analysis in Baldwin v Daubney.[^7] To clear the “novel point of law” hurdle, one must do more than simply show that there are no decided cases directly on point. One must show that the issue is “truly open” in the sense that “the litigant could reasonably say that he or she had no proper reason to expect to fail.”[^8]

[10] In my view, there was some measure of novelty in the interpretation of the Gift Card Regulation. As I noted in the Certification Decision, the Gift Card Regulation suffered from “an unfortunate degree of definitional circularity.”[^9] By this I meant there was a measure of “openness” to the interpretation. I also noted in the same decision that “the ‘gift card’ cause of action [was] novel.”[^10] I must therefore acknowledge on the reasoning in Baldwin v Daubney, as set out above, that whatever costs are awarded herein should be discounted somewhat to reflect at least some measure of novelty.

[11] However, I do not accept the plaintiff’s submission that the “public interest” consideration as set out in s. 31(1) of the CPA applies on the facts herein. Like many consumer class actions in which consumers attempt to recover monies lost to a supplier – whether through product over-charging or price fixing or, as here, the alleged premature seizure of pre-paid credit balances – the class size is in the thousands, but the fundamental dispute is invariably monetary in nature and almost always involves the interpretation of a specific contractual agreement. A private contractual dispute with limited importance beyond the immediate parties. Indeed, on the certification/leave to appeal decision, the Divisional Court judge was unable to conclude that “the matters at issue in this case are of such general importance, beyond the immediate interests of the parties, that it is desirable to grant leave.”[^11] And the fact that the CRTC published a new Wireless Code more than a year before the summary judgment decision touching on some of the issues being litigated herein does not turn what is inherently a private commercial/consumer dispute about the expiry of pre-paid cell phone balances into a public interest litigation.

[12] In short, I am not persuaded that there is a public interest dimension to this class proceeding that should result in a reduction in the costs award.

[13] What then is the appropriate costs award? Starting with a costs amount in the $115,000 range (exclusive of disbursements and taxes) I am prepared to reduce this amount to $100,000 to reflect some measure of novelty in the interpretation of the Gift Card Regulation. Adding disbursements and taxes, and then rounding down, I find it fair and reasonable to fix costs at $110,000 inclusive of disbursements and taxes.

[14] Costs are fixed at $110,000 all inclusive, payable by the plaintiff (more accurately by the Law Foundation of Ontario) to the defendant within 30 days.

Justice Edward P. Belobaba

Date: April 2, 2015

[^1]: Sankar v Bell Mobility, 2015 ONSC 632.

[^2]: The Class Proceedings Fund is financially responsible for the costs award under s. 59.4 of the Law Society Act, R.S.O. 1990, c. L.8 and the Foundation has the right to make costs submissions pursuant to Rule 12.04 of the Rules of Civil Procedure.

[^3]: Sankar v Bell Mobility, 2013 ONSC 5916.

[^4]: Sankar v Bell Mobility, 2013 ONSC 6886.

[^5]: Class Proceedings Act, 1992, S.O. 1992, c.6.

[^6]: Supra, note 4, at para. 9.

[^7]: Baldwin v. Daubney, 2006 33317 (ON SC), [2006] O.J. No. 3919 (S.C.J.)

[^8]: Ibid., at para. 22.

[^9]: Supra, note 3, at para. 38.

[^10]: Supra, note 3, at para. 43.

[^11]: Sankar v Bell Mobility Inc., 2013 ONSC 7529 (Div.Ct.) at para. 20.