The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc.
CITATION: The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2017 ONSC 3369
COURT FILE NO.: 12-CV-453236CP
DATE: 20170531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE TRUSTEES OF THE DRYWALL ACOUSTIC LATHING AND INSULATION LOCAL 675 PENSION FUND and 0793094 B.C. LTD.
Plaintiffs
– and –
SNC-LAVALIN GROUP INC., IAN A. BOURNE, DAVID GOLDMAN, PATRICIA A. HAMMICK, PIERRE H. LESSARD, EDYTHE A. MARCOUX, LORNA R. MARSDEN, CLAUDE MONGEAU, GWYN MORGAN, MICHAEL D. PARKER, HUGH D. SEGAL, LAWRENCE N. STEVENSON, GILLES LARAMÉE, MICHAEL NOVAK, PIERRE DUHAIME, RIADH BEN AÏSSA and STÉPHANE ROY
Defendants
COUNSEL:
Joel P. Rochon, Peter Jervis, Douglas Worndl, Michael Robb, Ronald Podolny, for the Plaintiffs
Steve Tenai and Kate Findlay for the Defendants, SNC-Lavalin Group Inc., Ian A. Bourne, David Goldman, Patricia A. Hammick, Pierre H. Lessard, Edythe A. Marcoux, Lorna R. Marsden, Claude Mongeau, Gwyn Morgan, Michael D. Parker, Hugh D. Segal and Lawrence N. Stevenson
Paul Guy, for the Defendant, Riadh Ben Aïssa
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] This is a costs decision after the hearing of an omnibus motion (eight motions heard together) in this billion-dollar misrepresentation in the secondary market securities class action.
[2] The result of the omnibus motion was that: (a) I granted the Outside Directors’ motion to strike paragraphs 15(e) and 16 from the Plaintiffs’ Amended Reply without leave to amend; (b) I dismissed the Plaintiffs’ motion to deliver a Fresh as Amended Reply; (c) I granted the Outside Directors’ and Mr. Novak’s respective motions to strike paragraphs 20 to 41 from Mr. Ben Aïssa’s Statement of Defence without leave to amend; (d) I made protective orders with respect to the examinations for discovery of Messrs. Ben Aïssa, Duhaime, and Roy; and (e) I made no orders to stay or postpone the examinations for discovery. See The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2017 ONSC 2188.
[3] I concluded my Reasons for Decision by suggesting that the appropriate order was to make the costs of all the motions, costs in the cause but that if any of the parties disagreed, then they could apply for costs.
[4] SNC-Lavalin and the Outside Directors submit that the costs should be payable to them in any event of the cause and more appropriately forthwith. They claim costs of $42,597.44, all inclusive, from the Plaintiffs, and costs of $25,663.45, all inclusive, from Mr. Ben Aïssa.
[5] Not surprisingly, the Plaintiffs and Mr. Ben Aïssa submit that the appropriate order is to make costs in the cause. In the alternative, they make a host of arguments challenging the quantum of the costs being claimed.
[6] Having read the costs submissions of the parties, I am convinced that the appropriate and fairest award in all the circumstances is costs in the cause.
[7] Although I did not mention it in my Reasons for Decision, before suggesting that costs in the cause was the appropriate order, I had reflected that in all the circumstances of the omnibus motion and of the action, the fairest order would be no order as to costs. I reflected that such an order would better correspond to the omnibus nature of the hearing and of its divided outcome, where not only was success divided, but on some issues, success was diminished from the aspirations of the successful party.
[8] Further, as I did note in my Reasons for Decision, many of the issues explored on the omnibus motion were the novel issues in the unchartered legal territory of the secondary market causes of action under the Ontario Securities Act, R.S.O. 1990, c. S.5. The circumstance of exploring novel legal issues is a basis upon which judges may exercise their discretion to expressly make no order as to costs.
[9] However, notwithstanding these reflections that would justify making no order as to costs, I ultimately suggested that costs in the cause was the appropriate order.
[10] I made this suggestion because I felt that the omnibus motion was part of the fabric of the whole litigation and if a party ultimately succeeded in the whole litigation then win, lose, or draw on the various branches of the omnibus motion, the victorious party in the action should be able to claim costs for the interlocutory motion. Put somewhat differently, if I picked a winner for the omnibus motion and made the losers pay costs but the winner ultimately failed in the overall litigation, then it would be unfair and unjust that the party that won the battle but lost the war should receive costs from the ultimate victor of the case.
[11] I remain of the view that the appropriate award in all the circumstances is costs in the cause.
Perell, J.
Released: May 31, 2017
CITATION: The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2017 ONSC 3369
COURT FILE NO.: 12-CV-453236CP
DATE: 20170531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE TRUSTEES OF THE DRYWALL ACOUSTIC LATHING AND INSULATION LOCAL 675 PENSION FUND and 0793094 B.C. LTD.
Plaintiffs
‑ and ‑
SNC-LAVALIN GROUP INC., IAN A. BOURNE, DAVID GOLDMAN, PATRICIA A. HAMMICK, PIERRE H. LESSARD, EDYTHE A. MARCOUX, LORNA R. MARSDEN, CLAUDE MONGEAU, GWYN MORGAN, MICHAEL D. PARKER, HUGH D. SEGAL, LAWRENCE N. STEVENSON, GILLES LARAMÉE, MICHAEL NOVAK, PIERRE DUHAIME, RIADH BEN AÏSSA and STÉPHANE ROY
Defendants
REASONS FOR DECISION - COSTS
Perell, J.
Released: May 31, 2017