Citation: Mancinelli v. Royal Bank of Canada, 2017 ONSC 1196

Court File No.: CV-15-536174

Date: 20170221

Ontario

Superior Court of Justice

Between:

Joseph S. Mancinelli, Carmen Principato, Douglas Serroul, Luigi Carrozzi, Manuel Bastos and Jack Oliveira in their capacity as The Trustees of the Labourers' Pension Fund of Central and Eastern Canada, and Christopher Staines

Plaintiffs

– and –

Royal Bank of Canada, RBC Capital Markets LLC, Bank of America Corporation, Bank of America, N.A., Bank of America Canada, Bank of America National Association, The Bank of Tokyo Mitsubishi UFJ Ltd., Bank of Tokyo-Mitsubishi UFJ (Canada), Barclays Bank PLC, Barclays Capital Inc., Barclays Capital Canada Inc., BNP Paribas Group, BNP Paribas North America Inc., BNP Paribas (Canada), BNP Paribas, Citigroup, Inc., Citibank, N.A., Citibank Canada, Citigroup Global Markets Canada Inc., Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG, Credit Suisse Securities (Canada), Inc., Deutsche Bank AG, The Goldman Sachs Group, Inc., Goldman, Sachs & Co., Goldman Sachs Canada Inc., HSBC Holdings PLC, HSBC Bank PLC, HSBC North America Holdings Inc., HSBC Bank USA, N.A., HSBC Bank Canada, JPMorgan Chase & Co., J.P.Morgan Bank Canada, J.P.Morgan Canada, JPMorgan Chase Bank National Association, Morgan Stanley, Morgan Stanley Canada Limited, Royal Bank of Scotland Group PLC, RBS Securities, Inc., Royal Bank of Scotland N.V., Royal Bank of Scotland PLC, Société Générale S.A., Société Générale (Canada), Société Générale, Standard Chartered PLC, UBS AG, UBS Securities LLC and UBS Bank (Canada)

Defendants

Counsel:

Kirk M. Baert for the Plaintiffs

Eric R. Hoaken, Ian C. Matthews and Fahad Siddiqui for the Defendant Standard Chartered PLC

Larry P. Lowenstein, Michelle Lally, Allan Coleman and Robert Carson for the Defendants, Royal Bank of Canada and RBC Capital Markets LLC

Benjamin Zarnett, Jessica Kimmel, and Daniel Cohen for the Defendants, The Bank of Tokyo Mitsubishi UFJ Ltd., and Bank of Tokyo-Mitsubishi UFJ (Canada)

Donald B. Houston, Rene Sorell, Andrew Matheson, and Shane C. D'Souza for the Defendants Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG, and Credit Suisse Securities (Canada), Inc.

Subrata Bhattacharjee, Tim Buckley, Greg McLean, Cheryl Woodin and Pierre Gemson for the Defendant Deutsche Bank AG

Kent E. Thomson, Matthew Milne-Smith and Anisah Hassan for the Defendants Morgan Stanley Canada Limited and Morgan Stanley

Peter Osborne, Shara Roy and Chris Hunter for the Defendants Société Générale S.A., Société Générale (Canada), and Société Générale

Proceeding under the Class Proceedings Act, 1992

Heard: In writing

Reasons for Decision - Costs

Perell, J.

[1] In this proposed national class action under Ontario's Class Proceedings Act, 1992, S.O. 1992, c. 6, one of the Plaintiffs, Christopher Staines, brought an ex parte application in the United States District Court for the Southern District of New York and obtained a subpoena for the purposes of the Ontario class action to compel non-party discovery from Bloomberg LP. The Defendants: (1) Standard Chartered PLC; (2) Credit Suisse AG and Credit Suisse Securities (Canada), Inc.; (3) Morgan Stanley Canada Limited and Morgan Stanley; (4) Royal Bank of Canada and RBC Capital Markets LLC; (5) The Bank of Tokyo Mitsubishi UFJ, Ltd. and Bank of Tokyo-Mitsubishi UFJ (Canada); (6) Société Générale S.A., Société Générale (Canada) and Société Générale; and (7) Deutsche Bank AG, brought a motion for an order that the Plaintiffs: (a) may not take any step in furtherance of the Bloomberg LP subpoena; and, (b) may not take any steps to acquire documents or any other evidence from non-parties through extra-jurisdictional procedures without further order of this court. I granted the motion; see Mancinelli v. Royal Bank of Canada, 2017 ONSC 87.

[2] The Moving Parties in a joint costs submission seek partial indemnity costs in the aggregate of $75,365.38, all inclusive, broken down as follows: (a) $57,865.38, all inclusive, to Standard Chartered, which took the lead in arguing the motion; (b) $15,000, all inclusive, payable to Credit Suisse; and (c) $2,500, all inclusive, payable as $500.00 each to Morgan Stanley, RBC, Bank of Tokyo, Société Générale, and Deutsche Bank.

[3] Without submitting dockets of their own for comparison purposes, the Plaintiffs submit that the costs claimed are excessive, and they submit that given the novelty and public interest in the issues raised by the motion, which the Plaintiffs characterize as the novel issue of what use, if any, a proposed representative plaintiff can make of Section 1782 of Title 28 of the U.S. Code, (which is entitled Assistance To Foreign And International Tribunals And To Litigants Before Such Tribunals), the court should exercise its discretion under s. 31 of the Class Proceedings Act, 1992 to reduce the costs payable to $15,000, all inclusive.

[4] I disagree, and I award the costs as claimed.

[5] Although the subject-matter of the motion was a matter of first instance (with the exception of one case) and although it is at least debatable that having the point resolved was in the public interest, nevertheless, I do not regard the case as an appropriate one for the exercise of the court's discretion under s. 31 of the Class Proceedings Act, 1992 for two main reasons.

[6] First, the issue was not novel in the legally significant way that would justify the court in ordering no costs against the party who unsuccessfully advanced the issue. For the successful party to be denied its costs, it is not enough that the issue is unprecedented or that the issue has not been decided before: McCracken v. Canadian National Railway Co., 2012 ONSC 6838. The legally significant novelty of a legal issue is found in the circumstance that the existing case law is inadequate to resolve the issue and there would be no proper reason for the party advancing the issue to expect to fail: Baldwin v. Daubney, 2006 CanLII 33317 (ON SC), [2006] O.J. No. 3919 (S.C.J.) at paras. 19-22; Fisher v. IG Investment Management Ltd., [2010] O.J. No. 2036 (S.C.J.). Given the state of the case law, the Plaintiffs were just rolling the procedural and tactical dice and there were a lot of reasons to anticipate snake eyes.

[7] Second, the Plaintiffs' conduct in attempting to circumvent the rules that govern discovery of non-parties in class actions in Ontario was improper in both its purpose and in its execution, as described in more detail in my Reasons for Decision. Had the Defendants asked for costs on a substantial indemnity basis, I would have thought seriously about making such an award against the Plaintiffs.

[8] In any event, in the circumstances of the immediate case, I do not regard the costs claimed by the successful parties as excessive or beyond the reasonable expectations of the unsuccessful parties.

[9] Order accordingly.

Perell, J.

Released: February 21, 2017

CITATION: Mancinelli v. Royal Bank of Canada, 2017 ONSC 1196

COURT FILE NO.: CV-15-536174

DATE: 20170221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS' PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES

Plaintiffs

– and –

ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P.MORGAN BANK CANADA, J.P.MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, UBS AG, UBS SECURITIES LLC and UBS BANK (CANADA)

Defendants

REASONS FOR DECISION - COSTS

PERELL J.

Released: February 21, 2017