Court File and Parties

COURT FILE NO.: CV-17-581322-00CP DATE: 20180925 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Azar, Plaintiff – and – Strada Crush Limited, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Henry Jurioviesky and Robert Nunes (under the supervision of Henry Jurioviesky), for the Plaintiff Rahool Agarwal and Ted Brook, for the Defendant

HEARD: Costs submissions in writing

Costs Endorsement

[1] On August 17, 2018, I issued my judgment certifying this matter under the Class Proceedings Act, 1992, SO 1992, c. 6. The Plaintiff now seeks his costs of that motion in the amount of $229,283 (plus disbursements) on a partial indemnity basis or $343,924 (plus disbursements) on a substantial indemnity basis.

[2] Defendant’s counsel concedes that the Plaintiff deserves costs of the motion, but submits that Plaintiff’s counsel’s request is disproportionately high. I tend to agree.

[3] Plaintiff’s counsel’s Bill of Costs indicates that he spent a total of 1,094.28 hours on this motion. Defendant’s counsel points out that this comes to more than 27 full-time, 40-hour work weeks for a one-day motion.

[4] Plaintiff’s counsel did an excellent job on this motion, and his investment of time paid dividends in the form of a successful result for the Plaintiff and class. But this intensity of work represents a level of expense that cannot be entirely shifted to the Defendant.

[5] Costs are, of course, discretionary under s. 131 of the Courts of Justice Act, RSO 1990, c. C.43. Under the Rules of Civil Procedure, RRO 1990, Reg. 194, the applicable criteria for exercising this discretion here are a combination of the principle of indemnity [Rule 57.01(1)(0.a)], the unsuccessful party’s reasonable expectations [Rule 57.01(1)(0.b)], the complexity of the matter [Rule 57.01(1)(c)], and the importance of the issues [Rule 57.01(1)(d)].

[6] This is a typical class action which would potentially be beyond the means of the Plaintiff or any one class member to litigate, and for which access to justice for the class therefore turns on a successful certification motion. Accordingly, the issues on the certification motion were quite important to the viability of the action itself. That said, the matter was only of moderate complexity. There were a number of issues of statutory interpretation and some key facts in dispute; but at the same time, many of the factual underpinnings of the case were not a matter of disagreement between the parties.

[7] Plaintiff’s counsel did do significant legal research, and doubtless had to spend a number of hours interviewing his client and other class members. Likewise, Defendant’s counsel had to research the law and policy issues raised by the claim, and had to review its personnel and accounting records in order to adequately respond to the Plaintiff’s allegations. I would estimate that both sides placed roughly equivalent demands on their respective counsel.

[8] Defendant’s counsel has submitted a Costs Outline seeking $102,081.10 on a partial indemnity basis. In my view, this reflects a proportionate level of costs given the complexity and importance of the certification motion. It also is indicative of the expectations of the Defendant in terms of the level of costs entailed in this motion. In my view, it reflects an amount that should adequately serve to indemnify Plaintiff’s counsel for the time spent on the motion.

[9] Defendant shall pay the Plaintiff costs of the certification motion in the amount of $102,000 plus HST of $13,260, plus disbursements in the amount of $3,719.40.

Morgan J. Date: September 25, 2018