COURT FILE NO.: CV-16-561843CP
DATE: 20180524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Valerie Barkley and Ronald Beaupre
Plaintiffs
– and –
Tier 1 Capital Management Inc., Dowarka Persaud, T1CM Principal Secured Mortgages Inc., Preeya Persaud, Patrick W. Jackson, John Lally, John G. Simmonds, J. Paul Fletcher, Fletcher & Crichlow LLP, Olympia Trust Company, KMJ & Associates Ltd., Robert W. Gowdy, Mondville Holdings Ltd., Nicholas DookHie, Diane CheTram, JoHN Doe and Jane Doe
Defendants
Mitchell Wine for the Plaintiffs
Ryan Morris for the Defendant Olympia Trust Company
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Plaintiffs Valerie Barkley and Ronald Beaupre lost their investment in a Syndicated Mortgage, and pursuant to the Class Proceedings Act, 1992,[^1] they sued John Lally, John G. Simmonds, Tier 1 Capital Management Inc. (“Tier 1”), T1CM Principal Secured Mortgages Inc. (“T1CM”), Dowarka Persaud, Preeya Persaud, Patrick W. Jackson, J. Paul Fletcher, Fletcher & Crichlow LLP, Olympia Trust Company, KMJ & Associates Ltd., Robert W. Gowdy, Mondville Holdings Ltd., Nicholas Dookhie, Diane Chetram, John Doe, and Jane Doe.
[2] The Defendants Olympia Trust Company, KMJ & Associates Ltd., and Mr. Gowdy opposed certification.
[3] I granted certification against all the Defendants except Mr. Dookhie, Ms. Chetram, John Doe, Jane Doe, Olympia Trust Company, KMJ & Associates Ltd., and Mr. Gowdy. I dismissed the action as against Olympia Trust Company, KMJ & Associates Ltd., and Robert W. Gowdy.[^2]
[4] I directed that if the parties could not agree about the matter of costs, I would settle the matter after submissions in writing.
[5] The Plaintiffs agreed to pay KMJ & Associates Ltd., and Robert W. Gowdy costs of $27,500, all inclusive. However, the Plaintiffs and Olympia Trust were unable to come to an agreement.
[6] Relying on an indemnification agreement signed by Mr. Beaupre, which is set out below, Olympia Trust claims costs of $67,395.96 inclusive of HST and disbursements. The indemnification agreement stated:
I agree to indemnify and save harmless Olympia … from and against all claims, demands, actions, suits, or other proceedings, by whomsoever brought, and from all losses, costs, fines, levies, damages, expenses (including any legal fees and disbursements on a solicitor and client basis and any costs incurred in connection with the enforcement of this indemnity), taxes, penalties, and other liabilities whatsoever, directly or indirectly arising from or in connection with: (i) Olympia acting in accordance with the instructions set out herein; (ii) the investment of funds from my Plan in the Mortgage; or (iii) any breach of any representation, warranty or covenant made by me in the Trust Agreement or this Agreement.
[7] Without prejudice to Olympia Trust suing to enforce the indemnification agreement, I would not enforce it as part of determining costs in this action under the Class Proceeding Act, 1992. As a matter of contract interpretation, it is not clear to me that Mr. Beaupre’s proposed class action can be said to be an action against Olympia Trust arising from its acting in accordance with instructions about Mr. Beaupre’s investment or arising from any breach of any representation, warranty or covenant made by him in the Trust Agreement or the Indemnity Agreement.
[8] In the alternative, Olympia Trust claims costs on a partial indemnity basis, being $45,387.80, inclusive of HST and disbursements.
[9] The Plaintiffs do not dispute that Olympia Trust is entitled to costs for its success on the certification motion and for the action that was dismissed as against it. However, the Plaintiffs submit that $45,387.80 is not fair and reasonable and does not reflect costs awards in comparable cases.
[10] Without disclosing what they would have claimed for costs had they been the successful party, the Plaintiffs submit that $45,387.80 is beyond the reasonable expectations of the unsuccessful party. They submit that the appropriate award is $20,000 all inclusive.
[11] By way of allegedly comparable awards for costs, the Plaintiffs refer to what they have agreed to pay KMJ & Associates Ltd. and Robert W. Gowdy and to the costs that other plaintiffs with the same Class Counsel were required to pay on pleadings motion in a similar proposed class action that also involved Olympia Trust.
[12] I find none of these comparisons very helpful. A pleadings motion is not a certification motion and I am well placed to determine what is an appropriate award for costs in the particular exigencies of an action that I have been case managing.
[13] Having regard to the normal principles that guide the court in exercising its discretion and having reviewed the information provided by Olympia Trust, I award it, on a partial indemnity basis, $40,000, all inclusive, for the certification motion and for the action.
Perell, J.
Released: May 24, 2018
COURT FILE NO.: CV-16-561843CP
DATE: 20180524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Valerie Barkley and Ronald Beaupre
Plaintiffs
– and –
Tier I Capital Management Inc., Dowarka Persaud, T1CM Principal Secured Mortgages Inc., Preeya Persaud, Patrick W. Jackson, John Lally, John G. Simmonds, J. Paul Fletcher, Fletcher & Crichlow LLP, Olympia Trust Company, KMJ & Associates Ltd., Robert W. Gowdy, Mondville Holdings Ltd., Nicholas DookHie, Diane CheTram, JoHN Doe and Jane Doe
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: May 24, 2018
[^1]: S.O. 1992, c. 6. [^2]: Barkley v. Tier 1 Capital Management Inc., 2018 ONSC 1956.