Court File and Parties

COURT FILE NOs: CV-18-603803-00CP DATE: 20190628 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Settimo Tocco, Travis Briggs, Roger Chasles and Kristopher Chasles, Plaintiffs – AND – Bell Mobility Inc., Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Ted Charney, David Robins, and Tina Yang, for the Plaintiffs Patricia Jackson, Andrew Bernstein, Molly Reynolds, and Emily Sherkey, for the Defendant

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On May 13, 2019, I released my decision approving the certification of this action under the Class Proceedings Act, 1992, SO 1992, c 6 (“CPA”): Tocco v Bell Mobility Inc., 2019 ONSC 2916.

[2] During the course of my reasons, I stressed, at para 49, that, “the Plaintiffs’ certification record is overburdened with causes of action and evidence, and that this reflects a pleading that is repetitive and prolix”. I went on to indicate, at paras 52-57, that the Divisional Court and others have nevertheless made it clear that it is not the role of a motions court judge to edit what might otherwise be a bloated claim and record presented by a successful party.

[3] The Defendant’s objection to the certification motion was a modest one. Although ultimately unsuccessful, it was not the all-out attack on the Plaintiffs’ claim that Plaintiffs’ counsel describes it as in their costs submissions. I said as much in paras 10-12 of my decision:

[10] …the parties agree that this action for the most part conforms with the requirements of section 5(1) of the CPA. The Defendant takes no issue with there being an identifiable class (s. 5(1)(b)) and appropriate representative Plaintiffs (s. 5(1)(e)). More to the point, the Defendant agrees that the action, or part of the action, should be certified as a class proceeding. Defendant’s counsel concedes that the Statement of Claim discloses at least one or more causes of action (s. 5(1)(a)) and that the claims raise at least some common issues (s. 5(1)(c)).

[11] The parties part ways with respect to the requirement in s. 5(1)(d) of the CPA that a class proceeding be the preferable procedure for resolving the common issues. It is the Defendant’s view that some of the causes of action pleaded by the Plaintiffs are redundant.

[12] As Defendant’s counsel explains it, the Defendant does not contend that the causes of action pleaded by the Plaintiffs are not viable as causes of action. Rather, it is the Defendant’s position that the laundry list of claims is repetitive and unnecessarily complicated given the realistic contours of the case, and that this redundancy has the consequence of making the class proceeding needlessly long and cumbersome.

[4] Defendant’s counsel made a concerted effort to agree to achieve a consensual list of common issues, and, indeed, a partial list was achieved and presented to me at the hearing. Plaintiffs’ counsel wanted more and the case law supported them. However, there was nothing in the approach to the litigation by Defendant’s counsel that prolonged the certification process or made the motion more difficult than it needed to be. Quite the contrary.

[5] Plaintiffs’ counsel have provided me with their written costs submissions. I note that they were not able to keep these submissions within the page limit I set, but felt compelled to overrun that limit. The irony of this approach in the context of this case is not lost on me.

[6] The Plaintiffs seek total costs of $368,869.34 – a rather large amount given the nature of the half-day certification motion. This request breaks down as $175,000 in partial indemnity costs and HST of $22,750, plus $30,000 for costs of a contested motion to stay a companion action in Quebec, plus $141,119.34 in disbursements much of which reflects the cost of expert reports.

[7] The creators of Tocco v Bell are certainly thinking outside the bun.

[8] Costs, of course, are discretionary under s. 131 of the Courts of Justice Act, RSO 1990, c C.43. Generally speaking, it is not my inclination to pick apart a Bill of Costs submitted by a successful party. However, Rules 57.01(1)(c) and (e) of the Rules of Civil Procedure authorize me to exercise my discretion in a way which keeps the award of costs proportionate to the complexity of the proceeding and in line with the approach taken by each of the parties.

[9] There are a number of aspects of the Plaintiffs’ costs request that give me pause. In the first place, the Bill of Costs includes roughly $46,000 in costs associated with various scheduling matters, adjournments at the Plaintiffs’ request, sequencing of the certification motion with another motion ultimately abandoned by the Plaintiffs, and transferring the venue of the action to Toronto. None of this appears to be attributable to any intransigence on Defendant’s counsel’s part, and is mostly a result of the Plaintiffs’ own strategic decisions and logistics and scheduling within the court itself. There is no reason to impose those costs onto the Defendant.

[10] Moreover, I can see no reason to award the costs of a motion brought in the Quebec Superior Court. I did not preside in that motion and have little insight into what the appropriate award of costs would be. Indeed, I am not convinced that I have the jurisdiction to award costs for a proceeding in another province. In any case, the Quebec legislature has, in its wisdom, enacted a policy of awarding no costs in pre-authorization motions. It is not for me to fill that supposed gap. The $30,000 sought by the Plaintiffs in respect of the Quebec motion will not be awarded by this court.

[11] The Plaintiffs seek a further $44,500 in respect of counsel’s time working with their expert witnesses. This amount is in addition to some $114,000 in expert fees that are included in the Plaintiffs’ disbursement request as mentioned above. While the expert reports will doubtless prove valuable to the Plaintiffs, their value will ultimately be felt at trial. Plaintiffs’ counsel submit that they were compelled to engage experts at the certification stage due to what they characterize as the Defendant’s “full attack on certification”. However, I do not see where this so-called full attack materialized.

[12] Defendant’s counsel conceded that the action should be certified and consented to a list of common issues. This was not a new position adopted by the Defendant on the eve of the motion. A case conference endorsement issued by Howard J. on January 3, 2018 specifically indicated that “the Defendants do not intend to contest certification per se; the question is the scope of the issues, including the common issues in dispute and the definition of the class.” While the Defendant was not successful in making that argument, its position did not prompt a full-blown evidentiary support of the merits. As indicated above, the challenge was based on what Defendant’s counsel perceived as repetitive causes of action that unnecessarily complicated the proceedings and added little of substance to the Plaintiffs’ claim.

[13] In my view, the recovery of the costs involved in preparation of the Plaintiffs’ expert reports and affidavits should be in the cause. This includes the counsel time spent in respect of these expert filings as well as the disbursements associated with the experts.

[14] I would therefore subtract $90,500 (i.e. $46,000 + $44,500) from the Plaintiffs’ overall request of $175,000 in partial indemnity costs, and would disallow the Plaintiffs’ request of $30,000 in respect of the Quebec motion. I would also subtract $114,000 from the overall disbursement request of $141,119.34.

[15] The Defendant shall pay the Plaintiffs costs of this motion in the amount of $84,500 plus HST thereon. The Defendant shall also pay the Plaintiffs $27,119.34 in disbursements.

Morgan J. Date: June 28, 2019