COURT FILE NO.: CV-14-497479-00CP
DATE: 2019/12/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER SCOTT HARRIS
Plaintiff
- and -
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.
Defendants
Margaret L. Waddell and Tina Q. Yang for the Plaintiff
Peter J. Pliszka and Kimberly E. Potter for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is a costs decision with respect to two interlocutory motions that were argued together in a proposed class action under the Class Proceedings Act, 1992,[^1] in which the Plaintiff, Peter Scott Harris, sues Bayerische Motoren Werke Aktiengesellschaft and BMW Canada Inc. (collectively “BMW”).
[2] In the first motion, pursuant to rule 30.04 (2) of the Rules of Civil Procedure,[^2] Mr. Harris requested an Order that BMW produce six sets of documents referred to in BMW’s Fresh as Amended Statement of Defence. At the argument of this motion, Mr. Harris withdrew his requests for documents numbered 4 and 5. He persisted in his request for inspection of the documents mentioned in requests numbered 1, 2, 3, and 6. I dismissed Mr. Harris’s motion.[^3]
[3] BMW seeks costs on a partial indemnity basis for the production motion. It seeks $17,500 all inclusive (inclusive of disbursements of $68.)
[4] In the second motion, BMW sought an order striking out paragraphs 19, 20, 21, 22, 23, 24, 70, and Exhibits "G", "H", "I", "J", "XX", and "YY" of the affidavit of John-Otto Phillips dated November 27, 2018. Mr. Phillips affidavit was filed as part of Mr. Harris’ motion record for the certification of his action as a class action.
[5] Before BMW’s motion was brought, Mr. Harris agreed to withdraw paragraph 70 and exhibits "XX" and "YY" of the Phillips affidavit without an admission that paragraph 70 or exhibits "XX" and "YY" were inadmissible hearsay. I, therefore, struck paragraph 70 and exhibits "XX" and "YY" from the certification motion record unopposed. I granted the balance of BMW’s motion, which involved striking exhibits comprised of more than 400 pages of discursive charts of hearsay evidence.[^4]
[6] This motion to strike inadmissible evidence was treated as a preliminary motion in the certification motion itself. After deciding the motion, I adjourned the certification motion so that the parties could complete their cross-examinations in the run up to the certification motion, which is scheduled to be heard in March 2020.
[7] This approach of treating the motion to strike as an in-advance part of the certification motion was salutary because it was a far more efficient and fair procedure than waiting to address the evidence at the certification motion.
[8] BMW seeks costs of $17,500 all inclusive, (disbursements were $4,057.18.) for the motion to strike evidence.
[9] Mr. Harris submits that the costs of the motion to inspect should be $2,500, all inclusive, because there was divided success or at most $5,000. It submits that the costs of the motion to strike evidence should be $3,500 payable in the cause of the certification motion.
[10] Mr. Harris submits that with respect to both motions the costs claimed by BMW are excessive and disproportionate to the matters at issue and beyond the reasonable expectations of the parties.
[11] Mr. Harris submits that with respect to the motion to inspect that the point about the right to inspect under rule 30.04 (2) pre-certification was a novel issue such that each party should bear their own costs.
[12] He submits that with respect to the motion to strike evidence, it is premature to decide costs until the certification motion is resolved since the motion to strike was part of that motion and because its significance to that motion is not perceivable at this time. He submits that it was not necessary for the purposes of this motion for BMW to proffer evidence about the regulatory process of the American National Highway and Safety Administration.
[13] I disagree with all of Mr. Harris’ submissions. There was no divided success. Mr. Harris brought one motion and responded to BMW’s motion. Both motions were reasonably brought or responded to, but Mr. Harris was not successful. He lost both motions. It was necessary and reasonable for BMW to vigorously prosecute or resist the respective motions, and it cannot be faulted for proffering evidence about the American National Highway and Safety Administration. Motion. Mr. Harris did not disclose his own expenditure of legal resources for the motion and it is a flaccid submission to allege disproportionate hours without disclosing what would be proportionate and without disclosing one’s own expenditure.
[14] Therefore, in my opinion, the appropriate award of costs for the two motions which were argued together is $35,000, all inclusive, payable to BMW in any event of the certification motion.
[15] Order accordingly.
Perell, J.
Released: December 16, 2019
COURT FILE NO.: CV-14-497479-00CP
DATE: 2019/12/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER SCOTT HARRIS
Plaintiff
- and -
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: December 16, 2019
[^1]: S.O. 1992, c. 6. [^2]: R.R.O. 1990, Reg. 194. [^3]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5967. [^4]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5958.