COURT FILE NO.: CV-12-466367-CP
DATE: 20151113
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sachin Bakshi, Plaintiff / Moving Party
AND:
Global Credit & Collection Inc., Defendant / Responding Party
BEFORE: Justice Edward P. Belobaba
COUNSEL: Kenneth Alexander and Henry Juroviesky for the Plaintiff
David Milosevic and Cameron Fiske for the Defendant
HEARD: November 3, 2015
Proceeding under the Class Proceedings Act, 1992
CONSENT CERTIFICATION
[1] On June 2, 2011 the defendant Global Credit & Collections Inc. (“Global Credit”) laid off more than 300 debt collection employees after it lost its largest client. Most have since been recalled and have returned to work.
[2] The plaintiff, Sachin Bakshi, who has not returned to Global Credit, brings this proposed class action to recover commissions allegedly owing on post-dated collections that the defendant says it was obliged to return to the client, Capital One. The plaintiff pleads both breach of contract and unjust enrichment. The proposed class is defined as:
All persons who were employed by Global and engaged in Capital One collections on June 2, 2011 and were eligible to receive but did not receive commissions under Global’s commission structure.
Consent certification
[3] Following a discussion in court, counsel for both sides agreed that with certain changes and revisions, the proposed class action could potentially be certified on consent; and, to their credit, counsel spent the balance of the day working on the revisions and in the early evening advised the court that an agreement had been reached on causes of action, class definition and common issues. The defendant intends to bring a motion for summary judgment in the very near future.
[4] Even though counsel have consented to certification, I am still obliged to ensure that the proposed class proceeding satisfies the requirements set out in s. 5 of the Class Proceedings Act.[^1] I can readily do so. The pleadings as amended disclose a reasonable cause of action in contract and unjust enrichment. On the affidavit evidence before me, I am satisfied that there is an identifiable class of two or more persons and some basis in fact for each of the proposed common issues. Further, that a class action is the preferable procedure and that Mr. Bakshi is a suitable representative plaintiff with a workable litigation plan.
[5] The consent motion for certification is granted. Set out below in the Appendix are the certified common issues.[^2]
Costs award
[6] Given that success was divided (the plaintiff’s original proposal had to be significantly revised to pass muster) I was initially of the view that no costs should be awarded. I have since had the opportunity to review the parties’ costs submissions and I have altered my initial view in one important respect.
[7] The plaintiff asks for $158,694 all-inclusive on a partial indemnity scale. The defendant provides detailed reasons why the plaintiff’s request is excessive and argues that $10,000 in costs should be awarded in its favour. In the alternative, the defendant asks that costs be in the cause pending the hearing of the summary judgment motion.
[8] I agree with the defendant that absent the court’s intervention at the hearing of the certification motion and the plaintiff’s revision of the class definition and common issues, and the amendment of the pleadings, it was likely that the motion for certification as originally proposed would not have succeeded. On the other hand, class counsel could well have asked for an adjournment under s. 5(4) of the CPA to make the suggested revisions and regroup. This is de facto what happened here – both sides continued to discuss matters after hearing the court’s concerns and later that afternoon agreed to certification, having made significant changes to the original motion.
[9] Having reviewed the plaintiff’s submissions, however, I agree with him that he is entitled to some costs because a portion of his original motion remained unchanged.
[10] In my view, it is fair and reasonable to resolve the matter of costs as follows: first, identify the amount that the plaintiff would have recovered had he succeeded on the motion as originally proposed (on the relatively modest amount of material as originally filed): here, given that the defendant has disclosed that its costs were just under $40,000 and recognizing that generally speaking plaintiff’s costs are higher, I would have awarded the plaintiff $50,000; next, discount this amount to reflect the fact that the defendant was right to oppose the motion as originally proposed and the court’s finding that success overall was almost equally divided: reducing the costs award to $25,000; finally given that the defendant’s summary judgment motion will be argued soon, award the $25,000 in costs to the plaintiff in any event of the cause but in the interests of efficiency make them payable in conjunction with the upcoming summary judgment motion.
[11] I therefore fix costs at $25,000 all-inclusive payable to the plaintiff in any event of the cause but only after the defendant’s summary judgment motion has been decided.
Belobaba J.
Date: November 13, 2015
Appendix: Certified Common Issues
Was the defendant Global in a contractual relationship with the Class Members?
Did Global owe a duty of good faith and fair dealing in respect of its obligation to perform under its contract with the Class?
If “yes” to “1”, or “yes” to “2”, Was Global obligated to pay the class members commissions, or damages arising from the Capital One post-dated collections?
Was Global unjustly enriched by failing to pay post-dated collection commissions to Class Members in accordance with its obligations?
If the answer to some or all of the common issues is “yes”, is Global potentially liable on a class-wide basis? If “yes”:
a. Can damages be assessed on an aggregate basis? If “yes”:
b. What is the quantum of aggregate damages owed to Class Members?
What is the appropriate method or procedure for distributing the aggregate damages award to Class Members?
Is the Class entitled to an award of aggravated, exemplary or punitive damages based upon Global’s conduct towards some or all Class Members?
If “yes”, what is the appropriate quantum of aggravated, exemplary or punitive damages that should be awarded?
[^1]: Class Proceedings Act, 1992, S.O. 1992, c.6.
[^2]: Common Issues 1 and 2 are probably unnecessary and will obviously be answered “yes” but counsel insisted and I will accede. Common Issue 5 regarding aggregate damages is certified because the monetary amounts in issue can readily be determined without proof by individual class members.