Court File and Parties

COURT FILE NO.: CV-19-00616354-00CP DATE: 2020-01-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WILL MORRIS, Plaintiff – and – SOLAR BROKERS CANADA CORP., JEAN CLAUDE AWWAD AND JOSEPH BARKER, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Alexandra Monkhouse and Andrew Monkhouse, for the Plaintiff

HEARD: Written submissions on costs

COSTS ENDORSEMENT

[1] On November 26, 2019, I issued my endorsement certifying this matter under the Class Proceedings Act, 1992 (“CPA”). In that endorsement, I indicated that there would be no costs awarded for or against either side in this action.

[2] At the request of counsel for the Plaintiff, I issued an Amended Endorsement on December 2, 2019 indicating that I would entertain written submissions on costs. I have now received written submissions from the Plaintiff but not from the Defendants. I understand that the Defendants’ counsel has in the meantime removed himself from the record. Plaintiff’s counsel advised me that they copied the Defendants on their written submissions, but I have not heard from the Defendants.

[3] In both versions of my endorsement, I indicated that counsel for the parties had worked hard to resolve most of the contentious issues in the certification motion. By the time of the certification hearing, only two issues remained to be decided: a) does the class need to be broken up into two subclasses, and b) if so, does there need to be a second representative plaintiff for the subclass to which the current sole Plaintiff does not belong?

[4] Counsel for the Plaintiff seeks an all-inclusive amount of $163,281.76 on a substantial indemnity basis or $112,206.32 on a partial indemnity basis. They indicate that the Plaintiff served an offer on May 7, 2019 that was never accepted by the Defendants.

[5] The Plaintiff’s offer, which has now been produced to me by Plaintiff’s counsel, provided: 1) the Defendants “shall consent to certification on the common issues as attached…”; 2) the Plaintiff “shall waive all costs incurred to the date of offer (May 7, 2019); and 3) the Defendants “shall pay to the [Plaintiff], the costs plus disbursements for the application from the date of offer (May 7, 2019) to the date of acceptance on a partial indemnity basis as agreed or as assessed by a Judge of the Superior Court of Justice”; and 4) “This offer is open for acceptance until five (5) minutes after the commencement of the motion currently booked for September 20, 2019 or any subsequent adjournment date, if adjourned.”

[6] Plaintiff’s counsels’ reason for seeking substantial indemnity costs is that they view this offer as qualifying under Rule 49 of the Rules of Civil Procedure for an elevated scale of costs. As Plaintiff’s counsel put it in their written submissions, “…substantial indemnity is appropriate because [the Plaintiff] beat their Rule 49 [sic] of May 7, 2019.”

[7] I am uncertain as to how one can “beat” a non-monetary settlement offer. The only monetary amount at stake in the motion and mentioned in the offer is the amount of costs payable to the Plaintiff. Since costs have yet to be determined, the Plaintiff did not “beat” anything in my ruling.

[8] It is a policy of this court to encourage parties and their counsel to work toward settlement of their disputes to the extent possible. Whether prompted by the Plaintiff’s offer or otherwise, the Defendants did just that. The matter was all but resolved by the time it got to a hearing. The two issues that remained outstanding raised legitimate questions about sub-classes and representative Plaintiffs. It turned out that I agreed with the Plaintiff’s position on one of those issues and with the Defendants’ position on the other.

[9] I understand that Plaintiff’s counsel would like compensation for the time and effort it took to work out the settlement of many of the certification issues. A victorious party in a proceeding can expect a judge deciding the matter to award it costs as a matter of course, barring anything unusual: Blue Range Resource Corp. (Re) (2001), 2001 ABCA 177, 202 D.L.R. (4th) 523 (Alta CA); Ryan v McGregor (1925), 1925 CanLII 460 (ON CA), 58 OLR 213 (Ont CA). But a settlement is not a victory, and a settling party does not carry the same expectation. It would not provide an incentive to responding parties to settle claims if negotiating a settlement were treated as an unsuccessful arguing of matter, and the costs incurred in the negotiation were as a matter of course made payable to the moving party by the responding party.

[10] Costs are always discretionary under section 131 of the Courts of Justice Act. In determining costs, the overall objective is to be fair and reasonable in the circumstances: Boucher v Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291, para 26 (Ont CA).

[11] Given the way the certification has worked out, I will exercise my discretion not to award costs for or against either of the parties to this motion.

Morgan J.

Date: January 6, 2020