Court File and Parties

COURT FILE NO.: CV-17-583406-00CP DATE: 2019/06/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTIAN EDUARDO GUTIERREZ Plaintiff

• and - THE WATCHTOWER BIBLE AND TRACT SOCIETY OF CANADA, WATCH TOWER BIBLE AND TRACT SOCIETY OF PENNSYLVANIA, and WATCH TOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. Defendants

Counsel: Bryan C. McPhadden and E. Sakure for the Plaintiffs Mahmud Jamal and W. David Rankin for the Defendants, Watch Tower Bible and Tract Society of Pennsylvania and Watchtower Bible and Tract Society of New York, Inc.

Proceedings under the Class Proceedings Act, 1992

HEARD: In writing

PERELL, J.

REASONS FOR DECISION - COSTS

[1] In this proposed class action under the Class Proceedings Act, 1992, the Plaintiff Christian Eduardo Gutierrez sues: (a) The Watchtower Bible and Tract Society of Canada (“Watchtower-Canada”); (b) Watchtower Bible and Tract Society of Pennsylvania (“Watchtower-Pennsylvania”); and, (c) Watchtower Bible and Tract Society of New York, Inc. (“Watchtower-New York”).

[2] Mr. Gutierrez has a pending motion to add parties; namely: (a) Melissa White and Sandra Hall, as parties’ plaintiff; and (b) Christian Congregation of Jehovah’s Witnesses (“the Congregation”), as a party defendant.

[3] There is also a pending motion brought by Watchtower-Pennsylvania and Watchtower-New York to have the action stayed as against them on the grounds that this court does not have jurisdiction simpliciter over these foreign defendants. Both the joinder motion and the jurisdiction motion are scheduled to be heard on August 2, 2019.

[4] In support of his joinder motion and in opposition to the foreign Defendants’ jurisdiction motion, Mr. Gutierrez delivered three affidavits from Peter Tuovi, who is a partner of McPhadden, Samac, Touvi LLP, the law firm that is lawyer of record and the proposed Class Counsel for Mr. Gutierrrez’s proposed class action.

[5] Watchtower-Pennsylvania and Watchtower-New York brought a preliminary motion to strike all three of Mr. Tuovi’s affidavits on the grounds that the affidavits are: (a) non-compliant with the Rules of Civil Procedure; and (b) improper lawyer’s affidavits that are non-compliant with the Rules of Civil Procedure and the Rules of Professional Conduct and if not struck would disqualify Bryan C. McPhadden of McPhadden, Samac, Touvi LLP from arguing the motion.

[6] I struck the three affidavits with leave to deliver an Affidavit of Documents from Mr. Tuovi confined to documents that: (a) were exhibits to his three affidavits; and (b) are relevant to the joinder motion or the jurisdiction motion. See Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069.

[7] Watchtower-Pennsylvania and Watchtower-New York, Inc. seek costs of $15,252.12 payable within 30 days.

[8] Mr. Gutierrez submits that the appropriate award would be in the range of $5,000 to $7,500. He submits that the costs claimed are excessive because although much of the legal work could have been done by junior lawyers or an articling student, it was done by senior lawyers and because it was not necessary to have two gowned lawyers for the motion, which was argued by just one. Further, Mr. Gutierrez submits that the fees should be reduced because Watchtower-Pennsylvania and Watchtower-New York, Inc. refused to participate in settlement discussions that could have resolved the motion much like the order that was eventually made.

[9] Notwithstanding these submissions, I do not find that the costs request to be excessive or unfair. I find it to be within the reasonable expectations of the unsuccessful party. Accordingly, I reward $15,252.12 payable within 30 days.

Perell, J.

Released: June 24, 2019