Citation: Yip v. HSBC Holdings plc, 2017 ONSC 6848

Court File No.: CV-14-507953CP Date: 2017-11-20

Ontario Superior Court of Justice

Between:

Wai Kan Yip Plaintiff

– and –

HSBC Holdings plc and David Bagley Defendants

Counsel: Paul J. Bates and John Archibald for the Plaintiff R. Paul Steep, Brandon Kain, Bryn Gray, and Charlotte-Anne Malischewski for the Defendants

Proceeding under the Class Proceedings Act, 1992

Heard: In writing

Perell, J.

Reasons for Decision - Costs

A. Introduction

[1] This is a costs decision after a dispositive jurisdiction motion in a proposed class action. The successful Defendants claim an award of $1,000,455.22, all inclusive. The unsuccessful Plaintiff submits, however, that there should be no order as to costs because his claim raised novel and important issues. In the alternative, the unsuccessful Plaintiff submits that the appropriate award should be $150,000 because the Defendants’ claim for costs is unreasonable and excessive.

[2] For the reasons that follow, I grant the Defendants’ costs as requested.

B. Factual Background

[3] Pursuant to the Class Proceedings Act, 1992[^1], the Plaintiff Wai Kan Yip brought a proposed class action against HSBC Holdings plc and David Bagley, its former employee.

[4] HSBC Holdings is the parent holding company of an international banking conglomerate with a head office in London, U.K. Mr. Yip asserted a claim under Part XXIII.1 of the Ontario Securities Act[^2] against HSBC Holdings and Mr. Bagley and a common law negligent misrepresentation claim against HSBC Holdings.

[5] Mr. Yip sued HSBC Holdings (whose securities never traded in Canada) as a “responsible issuer” under the Ontario Securities Act. Mr. Yip sued on behalf of purchasers who purchased (on foreign stock exchanges) HSBC Holdings’ shares or it’s American Depository Receipts (“ADRs”). He alleged that the putative class members were misled by HSBC Holdings (which was regulated by foreign regulators) making false disclosures about compliance with anti-money laundering and anti-terrorist financing laws and about its nonparticipation in an illegal scheme to manipulate benchmark interest rates used by banks across the world.

[6] Mr. Yip alleged that after the disclosures were revealed as false, the investors in HSBC Holdings’ shares suffered a $7 billion (USD) loss because they overpaid for their shares or ADRs on the foreign stock exchanges.

[7] After Mr. Yip had delivered his material for certification of his action and for leave to assert a claim under the Ontario Securities Act, the Defendants brought a motion to dismiss or stay Mr. Yip’s action on the grounds that the Ontario court lacks jurisdiction simpliciter or on the grounds that Ontario is forum non conveniens for a misrepresentation action against a foreign bank that does not carry on business in Canada. Mr. Yip brought a cross-motion for a declaration that HSBC Holdings was a “responsible issuer” under the Ontario Securities Act.

[8] The legal question underlying both the motion and the cross-motion was what is the jurisdictional reach of an Ontario court to protect Canadian and non-Canadian investors when the defendant is a foreign corporation whose securities do not trade on a Canadian stock exchange? Underlying that fundamental legal question were the legal questions of: (a) what does it mean to carry on business in Ontario? and (b) where is the location of a tort for the purposes of determining whether the Ontario court has jurisdiction simpliciter over a foreign defendant.

[9] In the motion for certification of the action and for the cross-motion, the Plaintiff adduced affidavits from two fact witnesses and eight expert witnesses. For its jurisdiction motion, HSBC Holdings proffered affidavits from four fact witnesses, including one in Vancouver and two in the United Kingdom, and one in Toronto as well as four expert witnesses to provide evidence about the statutory regimes for regulating the stock market in the U.S., the U.K., Hong Kong, and Bermuda and one expert witness on the banking regulatory regime in Canada.

[10] Twelve witnesses were cross-examined in short examinations (9 hours, 35 minutes) that took place in New York, London, Vancouver, and Toronto over the course of 5.5 days. Mr. Shieh, the Defendants’ Hong Kong law expert, was examined by video conference, but a lawyer for HSBC Holdings travelled to Hong Kong to prepare him for the examination and attend in person with him.

[11] In August 2017, more than three years after the Statement of Claim was issued, the parties appeared for over 2.5 days of argument. The evidentiary record comprised 18,000 pages, which included: (a) the Defendants’ motion records (731 pages); (b) the Plaintiff’s motion records (14,485 pages); (c) a Joint Transcript Brief containing the transcripts of 12 cross-examinations (825 pages); (d) a Joint Exhibit Brief containing 54 documents (759 pages); (e) the Defendants’ Compendium (634 pages); (f) the Plaintiff’s compendium (559 pages); (g) facta (276 pages); and (h) books of authorities (4,596 pages).

[12] I concluded that HSBC Holdings is not a responsible issuer under s.138.8 of the Ontario Securities Act and that the Ontario court does not have jurisdiction simpliciter over HSBC Holdings and Mr. Bagley. I also concluded that, in any event, Ontario would be forum non conveniens. In this last regard, I concluded that for Mr. Yip and the putative Class Members, the U.K. was the natural forum and the forum conveniens.

[13] I, therefore, granted HSBC Holdings’ motion and I dismissed Mr. Yip’s cross-motion, and I dismissed Mr. Yip’s action under Part XXIII.1 of the Ontario Securities Act and I stayed Mr. Yip’s common law negligent misrepresentation claim against HSBC Holdings.[^3]

[14] The Defendants now request that the court fix costs on a partial indemnity basis in the amount of $1,000,455.22 comprised of $527,405.59 in fees and $472,575.03 in disbursements, plus HST.

C. The Submissions of the Parties

[15] In requesting an award of around $1.0 million, HSBC Holdings submits that its lawyers incurred actual costs in excess of $1.7 million, which costs have been discounted. The Defendants’ lawyers reduced the hours claimed, and they removed or reduced legal fees for work conducted by articling students, certain junior associates, and they reduced administrative fees for work conducted by law clerks.

[16] The Defendants submit that the $1.0 million award is appropriate given: (a) the complexity of the underlying action; (b) the value of the billion dollar claim; (c) the complexity of the motions; (d) the enormous evidentiary record; (e) the importance and dispositive nature of the motions; (f) Mr. Yip’s and his lawyers’ strategic framing of the Statement of Claim in anticipation of a jurisdictional challenge; (g) the nature of the strategic and tactical litigation choices made by Mr. Yip and his lawyers; and (h) Mr. Yip’s and his lawyers’ reasonable expectations as to their exposure to costs in the event of failure.

[17] Mr. Yip’s lawyers submit, however, that the combination of: (a) a nascent and unclear jurisprudence; (b) unique and important jurisdiction and investor issues; (c) a client wanting access to justice to resolve those issues; (d) Mr. Yip’s lawyers doing the right thing by seeking a fair and efficient determination by the court; and (e) the access to justice needs of Canadian investors, means that in the circumstances of this case, the court should exercise its discretion to award no costs.

[18] In the alternative, Mr. Yip’s lawyers submit that the amount requested by the Defendants for costs is patently excessive and unreasonable for what was just a jurisdiction motion on a largely uncontested factual record. They submit that the Defendants chose not to rein in the tendency to commit more resources than were necessary to reasonably and fairly test and challenge the Ontario court’s jurisdiction and that the Defendants should not effectively punish a proposed representative plaintiff of modest means in a unique and important case addressing investor protection in Canada.

[19] Mr. Yip’s lawyers submit that considering the factors enumerated under Rule 57.01(1) and the various admonitions of the Court of Appeal about making sure that costs are fair, reasonable, and consistent with the objective of access to justice, costs in this case should be fixed at $150,000 all-inclusive, which sum by comparison represents 70% of Mr. Yip’s partial indemnity fees and disbursements.

[20] In making their costs submissions, Mr. Yip’s lawyers contrast Mr. Yip, whom they describe as a retail investor of modest means with a modest personal stake in the litigation and who tried to access justice on behalf of Canadian investors through Ontario’s class action regime with the Defendant HSBC Holdings, which they describe as one of the largest financial institutions in the world. Mr. Yip’s lawyers contrast their own expenditure of time, which totalled $117,865 (plus HST) on a partial indemnity basis from the work of only two lawyers that managed their time efficiently with the five-lawyer and a law clerk team approach of HSBC Holdings’ lawyers that yielded an inefficient expenditure of $527,405.59 even after deductions.

[21] Mr. Yip’s lawyers exercise of compare and contrast prompted a nasty reply and sur-reply of submissions in which the Defendants’ lawyers pointed out that Mr. Yip may be of modest means but he was represented by sophisticated class counsel; i.e., entrepreneurial lawyers who understand the risks and rewards of high stakes litigation. The Defendants’ lawyers accused Mr. Yip’s lawyers of under-reporting the hours and rates for the jurisdiction motion, which they suggest was actually $307,479.93, inclusive of disbursements, without including the additional expert costs of Chris Mathers and Everett Stern ($9,303.21), both of whom were relied upon by Mr. Yip for the jurisdiction motion.

[22] In making their costs submissions, Mr. Yip’s lawyers compare and contrast the Defendants’ expenditure on expert witnesses for the jurisdiction motion of $441,519.88 with Mr. Yip’s expenditure for experts for the jurisdiction motion and for the unargued certification and leave motion of $103,470.75. Mr. Yip’s lawyers submit that the Defendants have provided insufficient information to assist the court in determining whether the experts’ fees are fair and reasonable.

[23] Mr. Yip’s lawyers submit that the invoices produced by the Defendants do not provide particulars sufficient to assist the court in determining their reasonableness and fairness. They submitted that the invoices issued by Messrs. Belanger, Chivers, and Shieh lack particulars about hourly rates and time spent, and the invoice of Professor Coffee lacks particulars about time spent researching Canadian law, arguably something beyond his mandate.

[24] After reviewing the invoices submitted by the Defendants’ experts, Mr. Yip’s lawyers object to particular portions of the charges of the experts. Mr. Yip’s lawyers submit that the court should substantially reduce the amount of any award for disbursements for the experts. Mr. Yip’s lawyers submit that the reports from Professor Coffee ($118,823.51), Mr. Wasty ($76,989.87), and Mr. Belanger ($69,080.86) were unnecessary or of little value to the ultimate outcome and should be excluded. Mr. Yip’s lawyers submit that an unknown portion of Mr. Chivers’ fee ($80,458.91) should be disallowed because without leave or consent, he delivered an 11-page supplementary affidavit post-cross-examination just two weeks before the exchange of facta. Mr. Yip’s lawyers submit that there should be no award in respect of Harvey Rands’ charges ($10,161.91), which they only learned about through the Defendants’ cost submissions.

[25] In their sur-reply submissions, Mr. Yip’s lawyers submitted that: (a) Mr. Wasty’s opinion was of marginal utility and should be disallowed or substantially discounted and that his use of four lawyers and expenditure of 111 hours was excessive and disproportionate; (b) Mr. Belanger’s opinion on Canadian banking regulations was neither necessary nor appropriate and his invoice wanted for particulars and the costs for the opinion should be reduced substantially if not otherwise excluded; (c) Professor Coffee’s opinion was unnecessary or had marginal utility on the motion, where the Defendants were not asserting that Mr. Yip’s action ought to proceed in the US; (d) Professor Coffee’s purporting to tell the court how it should approach the question of comity in a securities context was not appropriate and of minimal utility as was his study and examination of Canadian securities law; (e) Mr. Chivers’ invoices provide no particulars about hourly rates and time spent and the fee of $80,458.91 is excessive; (f) Mr. Yip should not have to pay for Mr. Rands whose work was not used on the motion; and (g) Mr. Shieh’s invoice provides no particulars about his hourly rate or time spent and the amount of the invoice is excessive.

D. Discussion and Analysis

1. Costs in Proceedings – General Principles

[26] Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.[^4]

[27] The court's discretion in awarding costs arises under the authority of s. 31(1) of the Courts of Justice Act,[^5] and is to be exercised by a consideration of the factors in rule 57.01 (1) of the Rules of Civil Procedure.[^6] These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding and the conduct of the parties in litigation.

[28] The traditional discretionary principles developed for costs awards are codified in rule 57.01 (1), which states:

Factors in Discretion

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[29] The most general rule about costs, not to be departed from without good reason, is that costs at a partial indemnity scale follow the event, which is to say that normally costs are ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale. This is the "loser-pays" principle.[^7]

[30] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant.[^8] In Davies v. Clarington (Municipality)[^9] at para. 52, Justice Epstein stated that the overriding principle in awarding costs is reasonableness. She stated:

52. As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said: "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."

[31] The assessment of reasonableness is discretionary and very much dependent upon the circumstances of each case. In some cases, it may be reasonable for the successful party to make exhaustive efforts and to commit enormous legal resources, and in those cases, it might be said that the unsuccessful party could reasonably expect to pay those costs. In other cases, however, the successful party may have been well served by giving his or her lawyer instructions to make exhaustive efforts, but it might be disproportionate and unreasonable to expect the unsuccessful party to pay those costs, even if he or she would have expected or anticipated that his or her foe would have marshalled those legal resources.

[32] Although the unsuccessful party is not obliged to disclose what he or she expended on costs, where the unsuccessful party submits that the costs claimed by the successful party are excessive, evidence of what he or she expended is relevant to the determination of what is reasonable and of what the unsuccessful party might reasonably have expected to pay.[^10]

[33] In the assessment of costs, there is a debate about whether the Costs Grid is an anachronism in the exercise of the court’s discretion as to costs.[^11] I regard the Costs Grid as something simply to consider when exercising the court’s discretion as to costs.

[34] Claims for disbursements, including expert’s reports, must be reviewed with careful scrutiny, and the principle that cost awards must be fair and reasonable applies to disbursements, including expert fees.[^12] The same approach for the determination of costs is applied to the recovery of fees paid to an expert witness. In Pearson v. Inco Ltd.,[^13] Justice Nordheimer (as he then was) stated at para. 20:

[T]he approach to the recovery of fees paid to expert witnesses ought to be exactly the same as the approach to the fees to be recovered by counsel. The court should consider what is fair in terms of hours and rates as well as the overall amount and should then fix an amount which it is reasonable for the losing party to pay. In so doing, the court is not bound by what the client may have actually had to pay the expert.

[35] In order to assist the court in determining whether an expert’s fee is fair and reasonable, the party claiming the disbursement should provide information about the amount of time spent by the expert in preparing the report and attending at trial (including preparation time), together with the hourly rate of the expert.[^14] In Hamfler v. 1682787 Ontario Inc.,[^15] Justice Edwards developed the following non-exhaustive criteria to assist courts in determining whether an expert’s fee is fair and reasonable or whether it is excessive: (a) Was the expert’s evidence relevant and did it make a contribution to the case? (b) Was the expert’s evidence of marginal value or was it crucial to the ultimate outcome at trial? (c) Was the cost of the expert or experts disproportionate to the economic value of the issue at risk? (d) Was the evidence of the expert duplicated by other experts called by the same party? (e) Was the report of the expert overkill or did it provide the court with the necessary tools to properly conduct its assessment of a material issue? and (f) How did the expert’s fee compare to the fees charged by the expert retained by his or her opponent?

2. Discretion to Reduce Costs or to Make No Order as to Costs

[36] The court has the discretion to reduce the amount of costs or to order that there be no order as to costs when the proceeding raises novel issues, particularly where the resolution of this issue is in the public interest.[^16] The court has the discretion to reduce the amount of costs or to order that there be no order as to costs when the state of the law is uncertain or under development or underdeveloped and it is in the public interest that the question be resolved.[^17]

[37] For an issue to be novel in the legally significant way that would justify the court in ordering no costs against the party who unsuccessfully advanced the issue, it is not enough that the issue is unprecedented or that the issue has not been decided before.[^18] 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.[^19] If a litigant submits that a case is novel because there is no decided case directly on point, he or she may be met with the argument that although there are no decided cases, the law is clearly against the case, so the litigant should reasonably expect to lose and thus the case is not novel in the requisite sense that would justify making no order as to costs.[^20]

[38] In normal litigation, it is relatively rare that the court will invoke its discretion to eliminate or reduce an unsuccessful litigant’s exposure to costs because the party was litigating a novel point or was litigating in the public interest. This follows because in the overwhelming majority of cases, the prime motivation of the parties will not be altruistic. In most cases, even if there is some public benefit that may be achieved by the litigation or some advancement achieved in the development of the law, a party will have the expectation that if he or she is successful, a partial indemnity for legal costs will follow and if the party fails, he or she will have to indemnify the successful party.[^21]

3. Costs and Class Proceedings - General Principles

[39] Under the scheme developed in Ontario for class proceedings, subject to the court’s discretion and the directive of s. 31 of the Class Proceedings Act, 1992, discussed below, the plaintiff remains liable for costs. Notwithstanding the recommendations of the Ontario Law Reform Commission in its report about costs in class proceedings, normally costs are awarded in class actions, particularly at the certification stage of a proposed class action.

[40] In Pearson v. Inco Ltd.,[^22] the Court of Appeal identified the following principles for fixing costs on a certification motion: (a) Ontario, unlike other class proceedings jurisdictions such as British Columbia, has not sought to interfere with the normal rule that costs will ordinarily follow the event; (b) the costs must reflect what is fair and reasonable; (c) the costs should, if possible, reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance; (d) a motion for certification is a vital step in the proceeding and the parties expect to devote substantial resources to prosecuting and defending the motion; (e) the costs expectations of the parties can be determined by the amount of costs that an unsuccessful party could reasonably expect to pay; (f) the complexity of the issues; (g) whether the case raises an issue of public importance; and (h) a fundamental objective of the Class Proceedings Act, 1992 is to provide enhanced access to justice.

[41] In exercising its discretion with respect to costs in class proceedings, the court may consider such factors as: (a) conduct or poor judgment that unduly prolonged the preparation or argument of the motion for certification; (b) failure to follow the schedule; (c) improper case-splitting; (d) delays in abandoning causes of action and issues that were ultimately dropped; (e) failing to communicate the revised list of common issues; and (f) refusing to acknowledge the significance of submissions and concessions.[^23] Where a successful plaintiff substantially recasts his or her case for certification, the defendant’s liability for costs may be reduced to compensate the defendant for the prejudice it suffered in wasting time responding to a case that was improperly formulated at the certification motion.[^24]

[42] Another important factor in awarding costs in class actions is the principle that the court should have regard to the underlying goals of the Class Proceedings Act, 1992; namely: (a) access to justice; (b) behaviour modification; and (c) judicial economy.[^25]

[43] A class proceeding should not become a means for either defendants or plaintiffs to overspend on legal expenses simply because the economies of scale of a class proceeding makes it worthwhile to enlarge the investment in the defence or prosecution of the case.[^26] A defendant should rein in any tendency to commit more resources than are necessary to fairly test and challenge the propriety of certifying the class proceeding.[^27]

[44] An important factor in awarding costs in class actions is s. 31 of the Class Proceedings Act, 1992, which provides that:

31. In exercising its discretion with respect to costs under subsection 131(1) of the Courts of Justice Act, the court may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest.

[45] Under s. 31 of the Act, in class proceedings, the approach to fixing costs is the same as in ordinary actions, but the court should give special weight to whether the class proceeding was a test case, raised a novel point of law, or involved a matter of public interest.[^28] However, if a plaintiff's claim is not certified or fails on its merits but is novel, a test case, or a matter of public interest, it does not automatically follow that the defendant should receive no costs from the plaintiff.[^29] In Holley v. Northern Trust Company, 2014 ONSC 3057, I noted that s. 31 is essentially precatory. I stated at paras. 22 and 23:

22. For good or for ill, the Legislature gave very little to plaintiffs in class actions with the enactment of s. 31 of the Class Proceedings Act, 1992. Regardless of the existence of s. 31, when a court exercises its discretion with respect to costs under subsection 131(1) of the Courts of Justice Act the court may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest. Section 31 is essentially precatory and simply reminds the court of a discretion that the court already has when awarding costs. As noted above, this discretion is exercised from time to time, but is not inevitably exercised so as to create an asymmetrical costs regime.

23. There is no doubt that the risk of having to pay costs is a deterrent to plaintiffs (and their lawyers) bringing class actions, but there is no doubt that undertaking that risk brings the potential award of significant costs, which would have been available to Ms. Holley in the case at bar. An adverse costs system is what the Legislature intended; it did not intend a costs regime that removes the risk. And it did not impose a public interest burden on defendants, who are also entitled to access to justice, by imposing an asymmetrical system of costs.

4. Analysis

[46] For several reasons, I am not persuaded by Mr. Yip’s lawyers’ argument that there should be no order as to costs because of the novel and important issues that were decided on the motion and cross-motion. I am also not persuaded that the costs award should be reduced from the amount requested by the Defendants.

[47] There is a make-believe quality to Mr. Yip’s lawyers’ characterization of Mr. Yip’s lawsuit and of HSBC Holdings’ defence to it. It is a fantasy to suggest that when Mr. Yip and his entrepreneurial class counsel sued a foreign defendant for $20 billion, later reduced to the not trifling $8.0 billion, that they did not reasonably anticipate that HSBC Holdings would spend $0.0001 billion to defend itself.

[48] The proposed class action was not altruistic litigation; it was entrepreneurial litigation. Mr. Yip and others willingly traded in foreign stock exchanges with no reasonable expectation that Ontario law might follow them overseas but with the knowledge that the foreign stock markets were regulated by foreign regulators. The putative class members have or had remedies available to them in the jurisdictions in which they traded. Putative class counsel’s pursuit of access to justice for Canadians was a self-appointed engagement as a regulator in another jurisdiction’s regulated stock market. The lawyers knew that their class action would be jurisdictionally challenged.

[49] The Defendants did not commit more resources than were necessary to reasonably and fairly test and challenge the Ontario court’s jurisdiction and Mr. Yip and his lawyers are not being punished for their resolute pursuit of access to justice.

[50] Mr. Yip and his lawyers cannot take cover from their exposure to the risks they knowingly took on by the argument that the issues in the jurisdictional motions were unique and important. Even if the issues associated with jurisdiction simpliciter were novel in the requisite sense, and in my opinion, they were not, the issue of forum conveniens or non conveniens was not novel and rather the forum non conventions issue was determined based on existing jurisprudence as was the issue about carrying on business in Canada.

[51] In any event, Mr. Yip’s lawyers’ prime motivation was entrepreneurial and they had no reasonable basis for anticipating that the court would relieve Mr. Yip from any of the myriad purposes of a costs regime in which loser pays.

[52] It is also make-believe for Mr. Yip and his lawyers to submit that the amount requested by the Defendants is patently excessive and unreasonable for what was just a jurisdiction motion on a largely uncontested factual record. I was there at the motion; this was complex litigation with ardent advocacy on both sides.

[53] Mr. Yip’s lawyers’ arguments - and for that matter also the Defendants’ arguments - about what can be learned from the motion material about the efficiency and productivity of the witnesses and the lawyers miss the mark. The volumes of material, phalanx’s of witnesses, hours or days of examinations, and the days of argument of the motions provides little information about the nature, importance, and complexity of the motions or about the efficiency and productivity of the witnesses and the lawyers.

[54] For instance, as Mark Twain noted when he apologized for corresponding at great length, because he did not have the time to write briefly, the duration of the cross-examinations does not reflect simplicity but rather reflects that the lawyers and the experts were professional, diligent, focused, and properly prepared their reports and their cross-examinations.

[55] That much of the factual record about HSBC Holdings’ connection to Canada was uncontested does not diminish the seriousness and the importance of the evidence on that issue or the necessary effort required to proffer the evidence to the court. That HSBC Holdings advanced evidence about all the jurisdictions in which its securities were traded was both an inevitable and necessary aspect of the forum conveniens analysis. And, as is often the case in vigorously contested litigation, testimony, experts’ reports, and cross-examinations are as productive for what they eliminate or reduce as for what they add to the record.

[56] Professor Coffee’s evidence was helpful given the significance of the U.S. law about the regulation of stock markets and because the prevailing international norm for jurisdiction in securities litigation emerged from the U.S. Supreme Court’s decision in Morrison v. National Australia Bank.[^30] Professor Coffee’s scholarship, research, and expertise in cross-border securities litigation in jurisdictions beyond the U.S. made him well positioned to opine on international comity implications.

[57] I am also not persuaded that, having regard to the reductions that the Defendants have already made, I should reduce Mr. Chivers’ fee because he delivered an 11-page supplementary affidavit post-cross-examination.

[58] I decline to weigh in on the unseemly debate about whether Mr. Yip’s lawyers underworked, underreported, or underpriced their hours and rates. If the lawyers were as efficient as they say they were – good for them – but I am satisfied that it was within the reasonable expectations of Mr. Yip that his opponents would expend $1 million dollars in response to an $8 billion lawsuit.

[59] The point is that in assessing the contribution, efficiency, and productivity of lawyers and witnesses neither hindsight nor foresight is 20/20, and, in the case at bar I have not been persuaded that any portion of the Defendants’ witness contribution was unnecessary or wasteful or beyond the reasonable expectations of the unsuccessful party.

E. Conclusion

[60] For the above reasons, I award the Defendants’ costs as requested.

Perell, J.

Released: November 20, 2017

[^1]: S.O. 1992, c. 6. [^2]: R.S.O. 1990, c. S.5. [^3]: Yip v. HSBC Holdings plc, 2017 ONSC 5332. [^4]: Hamilton-Wentworth (Regional Municipality) v. Hamilton-Wentworth Save the Valley Committee, Inc. (1985), 1985 1957 (ON SC), 51 O.R. (2d) 23 (H.C.J.); Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 1997 12208 (ON SC), 37 O.R. (3d) 464 (Gen. Div.); Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.); Somers v. Fournier (2002), 2002 45001 (ON CA), 60 O.R. (3d) 225 (C.A.); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757 (C.A.); Reynolds v. Kingston (City) Police Services Board (2007), 2007 ONCA 375, 86 O.R. (3d) 43 (C.A.). [^5]: R.S.O. 1990, c. C-43. [^6]: R.R.O. 1990, Reg. 194. [^7]: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.); Pike's Tent and Awning Ltd. v. Cormdale Genetics Inc. (1998), 27 C.P.C. (4th) 352 (Ont. Gen. Div.); Hague v. Liberty Mutual Insurance Co., 2005 13782 (ON SC), [2005] O.J. No. 1660 (S.C.J.); McCracken v. Canadian National Railway, 2012 ONSC 6838. [^8]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 24; Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 63806 (ON SC), 74 O.R. (3d) 728 (S.C.J.) at paras. 23-25; McGee v. London Life Insurance Co., [2008] O.J. No. 5312 (S.C.J.) at paras. 5-8. [^9]: (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.). [^10]: Hague v. Liberty Mutual Insurance Co. (2005), 2005 13782 (ON SC), 13 C.P.C. (6th) 37 (S.C.J.) at para. 15; MacDonald v. BMO Trust Co., 2012 ONSC 2654 at para. 27. [^11]: Inter-Leasing Inc. v. Ontario (Revenue), 2014 ONCA 683; Fairfield Sentry Limited v. PricewaterhouseCoopers LLP, 2015 ONSC 4961, Mask v. 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