Court File and Parties

COURT FILE NO.: CV-181819

DATE: 20201218

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KATHRYN ANNE TAYLOR, Plaintiff

AND:

THE ATTORNEY GENERAL OF CANADA, Defendant

BEFORE: Lederer, J.

COUNSEL: John Legge, Steve Pengelly, David Steeves, and Brian Moher Counsel, for the Plaintiff

Sean Gaudet, James Soldatich, Andrew Law, James Gorham and Roger Flaim Counsel, for the Defendant

James Newland and Neil Wilson for the Ontario Health Insurance Plan

HEARD: In Writing

COSTS ENDORSEMENT

[1] Costs are in the discretion of the Court. The jurisdiction is found in the Courts of Justice Act at section 131:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.[^1]

[2] This discretion is confirmed by the Rules of Civil Procedure which set the range of factors for the Court to consider in fixing costs.[^2]

[3] This is a class proceeding. The Class Proceedings Act makes special provision for the consideration of costs:

In exercising its discretion with respect to costs under subsection 131 (1) of the Courts of Justice Act, the court may consider whether the proceeding was a test case, raised a novel point of law or involved a matter of public interest.[^3]

[4] This provision speaks to the understanding that the recognition of a class proceeding is in furtherance of providing access to justice for people, where either the circumstances cannot justify an action by an individual or where there may be a general interest in seeing the matter or the issue dealt with by the courts. This understanding presages additional responsibilities for the parties and their counsel. In short, for parties to be recognized for bringing forward or acting in response to novel issues, in the public interest, as a test case or otherwise, counsel needs to carry the proceeding in a manner consistent with the broader concerns such actions represent. Access to justice is the foundation on which class actions proceed. The public interest is acknowledged in the hope lessons learned and promoted through such actions will be the catalyst for changed behavior, where applicable, of others and not just the parties. Appropriate use of the Court is captured in the idea of judicial economy. It is not just that the claims of many can be dealt with in one proceeding but that the single proceeding makes appropriate use of what the Court offers.

[5] From the outset, this was an unfortunate lawsuit.

[6] It concerned implants to the jaw said to have been placed in a class of Canadians. They included a proprietary product (“Proplast”) that, it was thought, would allow living tissue to grow into the implant thus making it more secure and improving the function of the jaw. Sadly, in the years that followed, it was learned that the material was frangible (fragile and brittle) such that it broke off in pieces that were distributed elsewhere in the body creating, in some, terrible pain and discomfort. In some cases, the jaw became ineffectual.

[7] The implants were surgically placed at some point between 1983 and 1990. The action was commenced in 1999 and took 20 years to come to trial. The reasons delivered at the end of the trial make note of the delay:

It is unacceptable that it has taken as long as it has for this action to proceed to trial. The case is premised on the idea that there is a group of people who have been harmed by the alleged neglect of the government. They have been waiting for twenty years, their suffering continuing, presumably with the hope, maybe even the expectation, of some assistance. No one should be content with the time this has taken. Those involved have to ask why they allowed this to happen.[^4]

[8] The problems were apparent almost from the outset. On July 25, 2001, Master McLeod in dealing with a refusals motion observed:

A form of procedural gridlock has arisen over this issue notwithstanding admonitions by the case management judge.[^5]

[9] On October 29, 2018, in the face of a trial date (January 14, 2019) set a year before (on October 31, 2017), the Plaintiff brought a motion to strike the Statement of Defence for failure to comply with an order concerning production made 15 years earlier (on October 17, 2003). After three hours of argument, counsel for the Plaintiff changed his mind and sought more production. The motion was adjourned, the trial was delayed and no fewer than ten motions heard by the Master on November 27 and 29, 2018 with a decision made on December 3, 2018. In the course of his reasons the Master noted:

With the volume of available and searchable documents and a trial commencing in 4 months, it is not possible to reconcile all of the parties’ positions and allegations with respect to the Production Motions. They have not been resolved over the last 15-plus years and there is no time to resolve them now. Both parties must bear responsibility for the delayed, late and inadequate productions over the last two decades and no purpose would be served in determining who is more to blame at this time. This includes issues arising from the AGC’s alleged and/or apparent non-compliance with the 2003 Order and Master Haberman’s directions and the Plaintiff’s late delivery of documents in the possession of her key witness 19 years into the proceedings and 21 years after his involvement with related actions…[^6]

[10] The Master ordered further production but placed time limits on the work this entailed. Even so, on March 19 and 20, 2019, less than two weeks prior to the commencement of the trial, the Crown produced more documents and the representative Plaintiff sought an adjournment. The request was refused.

[11] This demonstrated lack of co-operation permeated the entire trial. As part of an exchange that began on September 13, 2019, with only one witness left to be heard, counsel for the Plaintiff in response to a letter from counsel for the Crown wrote the Court, saying:

Mr. Gaudet’s letter revives the Plaintiff’s concerns about the AGC’s continuing non-compliance with prior production Orders. This noncompliance vitiates the Plaintiff’s ability to advance her case. Relevant documents were and continue to be withheld from production and discovery. Trial fairness cannot be restored without focussed remedial relief and sanction.[^7]

[12] The Reasons delivered at the end of the trial comment:

I have reviewed the letter from Mr. Gaudet. I am hard pressed to understand how it would be a catalyst for going back to Master MacLeod’s Order of October 17, 2003. It does not matter. What this exchange demonstrates is that to the very end, 16 years after the Order of Master MacLeod, the parties continued to battle over productions. Like Master McGraw I see no purpose in trying to assess blame. I say only that it is clear that the injunction of Master MacLeod, that cooperation was required, was not adhered to. This was to the detriment of the parties and to the proceeding.[^8]

[13] In the end the Crown was successful. The action was dismissed.

[14] The Reasons take account of the concerns already raised here:

In the absence of submissions, it is not possible for the Court to understand the position of the parties as to costs or to make any determination as to what, if any, award should be made. Nonetheless, it would be unusual not to have some introductory perspective. I think it fair to make these known to the parties, in the hope they may be helpful. This proceeding has taken much too long. As Master McGraw noted, and I have repeated, there is little, to my mind no purpose, in undertaking a review and assessment of responsibility for this. The record suggests such an examination would point amply in both directions.

There are wider implications to this delay than just the cost. There are people who have been waiting out the results of this proceeding for in excess of 20 years (for each of them the implants have been in place for a span of about 35 years). On a psychological level I expect, for them, this decision will be, at least, disappointing; on a practical level it is impossible to know the effect. There is a broad public interest in how the administration of justice is perceived and how it, in fact, impacts on those who are touched by it….[^9]

[15] I wondered whether this might be a case where no costs should be awarded. The underpinning to this inquiry was the concern that the parties had failed to understand, recognize or act in a fashion consistent with the responsibilities that come with acting on a class proceeding.

[16] It is from this base that the consideration of costs begins. The Crown seeks costs of $6,306,388.79. As high a request as this is, it apparently does not cover everything done in defence of this action. As described in the Bill of Costs, the claim does not include work done prior to September 7, 2007, the date on which the action was first certified as a class proceeding. It also does not include the Special Case heard by the Court of Appeal which finally dealt with the certification of the action in a decision released on July 6, 2012. While noteworthy these omissions represent a small part of the 20 years of internecine squabbling that went on between the Crown and the representative Plaintiff. This needs to be considered in company with the time spent on some parts of the proceeding and the number of lawyers brought to bear on those parts of the process.

[17] In her submissions in response to the Crown’s request for costs, the representative Plaintiff points out that on the motion to strike the Statement of Defence (the one which, after the submissions made on her behalf, the Plaintiff amended to a request for further production) the Crown shows docketed time by lawyers and staff of 1,691.35 hours. At 50 hours a week, which is to say, assuming not much if anything else was done, this would take one lawyer 33.827 weeks or well over half a year. It would take four lawyers, each contributing the same amount of time, 8.45675 weeks, or two months. As it is there were four lawyers that took part in this, along with three other staff members. The most senior lawyer docketed 329.4 hours, at fifty hours a week, this represents 6.588 weeks, a second lawyer spent 267.2 hours or, at 50 hours per week 5.344 week, the third lawyer contributed 149.25 or 2.985 weeks and fourth lawyer 134.5 hours or 2.69 weeks. The three staff members contributed 433.5 hours, 349.42 hours and 28.08 hours. Remembering that an award of costs is, generally, to represent what the opposing side could expect to pay, it is clear that the $348,727.50 claimed for this work is well outside any reasonable request.

[18] For the two days of motions, subsequently heard by the Master (November 27 and 29, 2018) four lawyers (three the same and one different) and the same three staff members docketed time representing a further claim for costs in the amount of $147,878.90.

[19] This is just below a half a million dollars for what resulted in three days of motions. Its off any chart that could reasonably be applied. I say this acknowledging the time-consuming searches that were required in response to the Orders made by the Master.

[20] For the 55 days of trial, to the best of my memory, there were never fewer than three lawyers and often more in Court appearing on behalf of the Crown. It is not for me to suggest, and I don’t, that the hours shown were not spent or the lawyers present in court were there without purpose; however, it is not for the representative Plaintiff, or those who take on the responsibility for any award of costs against her, to have to pay for it all.

[21] Quite apart from the hours spent and the lawyers and staff employed in the work for which costs are sought, are the other considerations raised by both s. 31 of the Class Proceedings Act and r. 57.01 of the Rules of Civil Procedure. The claim of the Crown for costs discounts the former (s. 31) to concentrate on some of the latter (constituents of r. 57.01).

[22] At the outset of its submissions seeking costs the Crown states:

This case was not a test case and did not raise novel points of law.[^10]

[23] In its submissions, in reply, the Crown ends with:

Lastly, this is not a test case brought out of concern for the public interest. The Plaintiffs sought and pursued significant damages from the Crown. To the extent that the litigation engages the public interest, this is at most a justification for a modest reduction to the costs that the Crown is otherwise entitled to receive as the successful party.[^11]

[24] In minimizing this consideration, the Crown relies on the following observation:

The court has the discretion to reduce the amount of costs or to order that there be no order as to costs when the unsuccessful party qualified as a public interest litigant. To be a "matter of public interest," the action must have some specific, special significance for, or interest to, the community at large beyond the interests of the parties to the litigation. A matter of public interest is something more than a matter that might interest the public, and it may not be possible for a court to provide a precise and comprehensive definition of the concept….[^12]

[25] Does this situation meet that definition of “a matter of public interest”? The Reasons delivered at the end of the trial begin with the following paragraph:

Government regulates many areas of our lives. This regulatory activity is part of what organizes our society, confirms its values and, in some circumstances, gives direction to what we can, should or might do. In a culture which values the individual and encourages other participants (say universities, research entities and corporations) to find solutions to common concerns, locating the balance between public and private responsibility when things go wrong is a complicated problem. This case enters into this difficult question but in what turns out to be a limited way.[^13]

[26] The significance of the issue was underscored by the timing of the events involved:

…This occurred at a time of growing government interest in the entry of these devices into the market and the perceived need for increased regulation to meet their arrival.[^14]…

[27] This was unquestionably a matter of public interest. It had significance to the broader community beyond the members of the class.[^15] The issues in the case had the potential to significantly impact future litigation. In its submissions the Crown acknowledged that:

Had the common issues been determined in favour of the Plaintiff, the legal relationship between governmental regulators and consumers of regulated industries would have been significantly altered.[^16]

[28] If there is any doubt about this, we need only return to the history of this litigation. Following on the release of Drady v. Canada,[^17] Attis v. Canada[^18] and Sauer v. Canada (Attorney General)[^19] which the first two cases both referred to, the Crown moved to decertify the action as a class proceeding. The judge hearing the application noted:

At the very least, in view of the need for clarification of the requirements for an effective public assumption of a private law duty of care, I consider that this is a case in which it should be held that the particular issue on which proximity turns is not fully settled in the jurisprudence within the meaning of the decisions cited in paragraph 47 above.[^20]

[29] The case moved directly to the Court of Appeal. The judge making the determination that it should, observed:

The circumstances of this case that lead me to exercise my discretion in favour of granting leave include the current state of the jurisprudence at the appellate level on an important issue of law, the inevitability that this issue will have to be decided by this court in this proceeding, the fact that an additional step -- an appeal to the Divisional Court -- will add significant expense to the proceeding and is very unlikely to assist in the ultimate determination of the issue by this court, the enormous delay and expense that have already occurred in this case, the importance of the case and, finally, the fact that both parties are consenting to the matter being heard by this court as a first-instance motion.[^21]

[30] In its determination of the Special Case the Court of Appeal noted that:

This is not the time or place to pass upon the ultimate sufficiency of the pleadings in Sauer. I am satisfied, however, that the detailed analyses of proximity in Attis and Drady, particularly in the light of the subsequent judgment in Imperial Tobacco, are more in line with the prevailing jurisprudence. The single conclusory observation in Sauer, standing alone, is not consistent with that jurisprudence.[^22]

But concluded that:

The jurisprudence permits no definitive answer for the first question [being the requirements in a statement of claim to establish sufficient proximity where the Plaintiff makes a claim against a governmental body].[^23]

[31] As the judge hearing the motion to decertify noted:

In such cases it has been held that the issue in dispute is best left to be dealt with at trial on the basis of a full evidentiary record.[^24]

[32] In its submission as to Costs the Crown preferred to concentrate on the constituents of r. 57.01(1) that raise as a consideration the actions of the parties:

Rule 57.01(1)…

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

[33] In its submissions the Crown follows its introduction of these factors as “especially important in this case” with:

Counsel for the Plaintiff initiated steps in this proceeding that were improper, vexatious and unnecessary, conducted the trial in a manner that unnecessarily lengthened it, and took positions in their final submissions that were inconsistent with positions adopted by the Plaintiff throughout the proceeding, including in their opening submissions.[^25]

[34] The problem with all of this is that while determined to base its claim for costs in the actions of the Plaintiff, the Crown makes little concession to its contribution to the many years of disagreement and delay. For the most part, in its submission as to Costs, the Crown has put to the side the broader concerns for the public interest and access to justice. So far as the Crown is concerned access to justice, in this case, is transformed to a justification for its claim for costs:

In fixing costs, the Court should have regard to the underlying goals of the CPA, namely access to justice, behaviour modification, and judicial economy. These factors apply equally to plaintiffs and defendants, and the Court must consider how its costs award will impact on access to justice for both parties. A defendant is entitled to access to justice when a meritless claim is dismissed, as is the case here.[^26]

[35] The narrow purview of the submissions made on behalf of the Crown is underscored by the positions it takes as to the contribution to any costs payment to be made on the one hand by O.H.I.P. and on the other by the Law Foundation of Ontario.

[36] O.H.I.P., as an insurer, had an interest in the claims made by the representative Plaintiff on behalf of the class as certified. It had made payments to some of those identified as having received the implants. Its claims were subrogated claims to the value of the amounts it had paid. This was a small fraction of the claims made in the action and the anticipated payments if the Crown was found to be liable. The statutory basis for any liability for costs to be awarded against O.H.I.P. is found in the regulations promulgated under the Health Insurance Act:[^27] Section 39(6) of that Regulation notes:

Subject to subsection (8), where an insured person obtains a final judgment in an action in which he or she includes a claim on behalf of the Plan, the Plan shall bear the same proportion of the taxable costs otherwise payable by the insured person, whether on a party and party basis or on a solicitor and client basis, as the recovery made on behalf of the Plan bears to the total recovery of the insured person in the action or, where no recovery is made, as the assessed claim of the Plan bears to the total damages of the insured person assessed by the court.[^28]

[37] Where no assessment of the claim made by O.H.I.P. is made the regulation cannot, and the parties agree, does not apply. O.H.I.P. presented no evidence that quantified the claim for the Court to assess. This being so, the Crown submits that the “usual rule that the liability of unsuccessful Plaintiffs for costs is joint and several should apply in this case.”[^29] Meady v. Greyhound Canada Transportation Corp., the case the Crown relies on as confirmation of the rule, arose from an accident involving a bus. It crashed when a passenger grabbed the wheel from the driver. The Plaintiffs were other passengers. They sued the driver, the owner of the bus and the police. The case was dismissed against all but the individual who seized the wheel.[^30] Costs were dealt with separate from the merits. The decision dealing with costs considered the “rule” but notes that the awarding of costs remains a matter of discretion:

The Defendants’ primary position flows from the application of the general rule that unsuccessful Plaintiffs are jointly and severally liable for costs unless the court, in the exercise of its discretion, orders otherwise.[^31]

[38] In Marchand v. Public Hospital of Chatham[^32] the Court, after delivering its judgment, returned to the question of costs and, in particular, whether they should be paid by O.H.I.P. The action was against a doctor, three nurses and a hospital. The Plaintiff child was born with profound disabilities. Midway through the trial, O.H.I.P. was granted leave to discontinue its claim for past and future expenditures on behalf of the infant Plaintiff. At the end of the trial, the claim was dismissed with costs to the Defendants. The claim made by O.H.I.P. was never assessed. Section 39(6) of the Regulation did not apply. O.H.I.P. was recognized as a sophisticated insurer that would have understood the risks of litigation, including its liability for costs. O.H.I.P. was not found to be jointly and severally liable for costs. It was not suggested it should have been. The Defendants argued that as a “full partner in the litigation” O.H.I.P. should have been required to pay 50% of the fixed costs up to the date of its withdrawal. The judge foresaw that if O.H.I.P. had continued, its claim would have been assessed, the regulation applied and O.H.I.P required to pay only its proportionate share of the costs. This would create a disincentive to settlement. Better to wait until the claim was assessed so costs would be reduced. The Court exercised its discretion. O.H.I. P. was required to pay only its proportionate share (in that case 12.22%).[^33]

[39] The representative Plaintiff received financial support from the Class Proceedings Fund. A costs award, made against the representative Plaintiff, would be payable by the Law Foundation of Ontario.[^34] The Crown submits that, in assessing costs, the Court is required to ignore the exposure of the Class Proceedings Fund to an adverse cost award. Any possible impact that a cost award may have on the viability of the Class Proceedings Fund should not factor into the discretion of the Court over the allocation, scale or quantum of costs. As submitted on behalf of the Crown, this is a matter for the Law Foundation of Ontario when it decides whether to provide funding to a Plaintiff.

[40] What this proposes is that the considerations raised by s. 31 of the Class Proceedings Act have no role to play in a determination of a cost award in a class action. The concerns raised there are fundamental to the existence of the fund and its role in these proceedings. Access to justice is an issue that extends beyond any single case. It does not fall to the side in the face of a claim for $6,306,388.79:

I reject CN’s argument that access to justice considerations are not involved because the Class Proceedings Fund will indemnify the representative Plaintiff for any costs award. The Fund was created to facilitate access to justice. If the Fund were required to absorb steep cost awards imposed on litigants even though the proposed action displays the factors in s. 31(1) of the CPA, this would have an undesirable chilling effect on class proceedings. [^35]

I would think that the CPC would inevitably take a more restrictive view of the cases it would fund if, in cases that were found to involve matters of public interest, the courts routinely give little or no weight to that factor when assessing costs payable by the Fund to the successful Defendant.[^36]

[41] In Ruffolo v. Sun Life Assurance Company of Canada[^37] the Plaintiffs brought an action questioning the right of the Defendant to offset benefits under a long-term disability plan by the amount of benefits received by their children under the Canada Pension Plan. The action was dismissed. Sun Life sought costs in the amount of $538,334.83. This claim was substantially discounted from the actual costs incurred. The Law Foundation of Ontario was responsible for paying any costs awarded to Sun Life. The company and the Plaintiffs, relying on s. 31(1) of the Class Proceedings Act submitted there should be no order as to costs. The Court found that the section was to encourage the recognition that class proceedings, as actions that tend towards being test cases, the determination of novel points of law or the adjudication of matters of public interest, have characteristics that must be carefully considered when the court exercises its discretion with respect to costs:[^38]

The effect of an action being under the Class Proceedings Act, 1992 is not to be approached categorically. Without stereotyping class proceedings, the court must examine the particular class proceedings to determine how to exercise its discretion with respect to costs.[^39]

[42] The claim for costs made by Sun Life was substantially reduced (to $215,000) to reflect the presence of public interest factors and to take account of the access to justice concerns raised by the Class Proceedings Act.

[43] The insistence of the Crown that everyone available be required to contribute fully to its cost claim of $6,306,388.79 confirms its failure to account of the broader implications of an action defined by the public interest responding to the need for access to justice.

[44] I turn now to the position of the representative Plaintiff. She does not seek costs for the overall conduct of the action. As the unsuccessful party it would be unlikely that such an award would be made. Rather, she requests costs in respect of one of the issues that arose in the proceeding.

[45] Pierre Blais was an employee of the Medical Devices Bureau, the division of Health and Welfare Canada responsible for the regulation of medical devices. The implants are an example. He left his employment in 1989 in somewhat difficult circumstances. He was terminated for an alleged failure to comply with internal policy governing release of information to the media. He grieved. The grievance was settled. He was reinstated but retired a day later. He was called as a witness on behalf of the Plaintiff. He had been available to the Plaintiff’s counsel for many years. Even so, in 2017, he produced documents that had not previously been seen. He happened on them when going over files he maintained in his home. The authenticity of four of these documents was questioned by the Crown. At a pretrial conference during the weeks leading up to the commencement of the trial, counsel for the Plaintiff advised they were unprepared to deal with the issue. One of the reports on which the Crown sought to rely had not been delivered. The Plaintiff required time to retain an expert and prepare a response. This resulted in a request for an adjournment of the trial. This was refused. The issue was set aside. The documents in issue were to be admitted without reference to their authenticity. That issue, if the Crown still intended to proceed with it, would be heard in a separate proceeding at the end of the evidence but before final submissions were made. Although not without difficulty, that is what happened.[^40]

[46] The Plaintiff seeks costs in the amount of $530,765.15. These are the costs her counsel attributes to what they refer to as the unproven allegation of fraud against Pierre Blais. The alleged fraud referred to is the asserted falsification of the four documents. The Plaintiff submits that a successful party that makes an unproven allegation of fraud should be deprived of its costs. In making this submission the Plaintiff relies on the case of UPM-Kymmene Corporation v. UPM-Kymmene Miramichi Inc., a decision of the Court of Appeal.[^41] The decision acknowledges “the normal rule” but upheld the determination of the trial judge to, nonetheless award costs to the party that alleged the fraud to be paid by the party against whom the fraud had been alleged:

The trial judge was aware of the normal rule that a successful plaintiff who has failed to establish fraud should be deprived of its costs. The trial judge provided reasons for exercising her discretion in favour of the respondent. We have not been persuaded that she erred in so doing.[^42]

[47] In dealing with the issue the trial judge had made the following determination:

Second, Mr. Berg submits that Repap should be denied costs as it alleged but did not prove fraud. An unproved allegation of fraud does not automatically attract cost consequences. Costs remain in the discretion of the court. This case was not lengthened or complicated by the allegations of fraudulent misrepresentation. The allegations were not an affront to the reputation or integrity of Mr. Berg. Although I stopped short of finding Mr. Berg’s conduct to be fraudulent, I found him to be totally lacking in credibility. I accepted none of his evidence. The Judgment is replete with language that condemns his conduct. There is no reason to deprive Repap of costs on this ground.[^43]

[48] To put it clearly, there may be a “normal rule” but in the end the issue, dealing as it does, with the awarding of costs, remains one that is in the discretion of the Court. In asserting the claim for costs as a result of what is seen as a failed allegation of fraud counsel also refers to and relies on Hamilton v. Open Window Bakery.[^44] This case is a decision of the Supreme Court of Canada. The plaintiff individual and the defendant company entered into a contract. The Plaintiff would be Open Window Bakery’s exclusive agent in Japan for 36 months. The contract was terminated. At trial it was held that the company had wrongfully repudiated the contract. Included in the action was the question of whether the agent had acted dishonestly. On the balance of probabilities, it was found that she had not. The trial judge awarded costs to the Plaintiff on a party and party scale up to the date he established as the time when the company should have understood there had been no dishonesty. From that date, he awarded costs on an elevated scale. This was amended on appeal but upheld at the Supreme Court:

In Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 134, McLachlin J. (as she then was) for a majority of this Court held that solicitor-and-client costs “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”. An unsuccessful attempt to prove fraud or dishonesty on a balance of probabilities does not lead inexorably to the conclusion that the unsuccessful party should be held liable for solicitor-and-client costs, since not all such attempts will be correctly considered to amount to “reprehensible, scandalous or outrageous conduct”. However, allegations of fraud and dishonesty are serious and potentially very damaging to those accused of deception. When, as here, a party makes such allegations unsuccessfully at trial and with access to information sufficient to conclude that the other party was merely negligent and neither dishonest nor fraudulent (as Wilkins J. found), costs on a solicitor-and-client scale are appropriate…[^45]

[49] This confirms that there is no inexorable right to a particular treatment of costs where dishonesty or fraud is alleged but not proved. It depends on the circumstances. Not all such attempts are demonstrative of “reprehensible, scandalous or outrageous conduct”.

[50] In this case it is not correct to say, as the Plaintiff does, that there was a comprehensive and conclusive determination that there had been no fraud or dishonesty on the part of Pierre Blais. The consideration of these issues was more nuanced than that. The four documents were examined by experts employed by the Canada Border Service. They examined the handwriting, hand printing and printed lettering found on the documents. For the first one, the conclusions were uncertain and comparative samples, over time, too few.[^46] The document was found, on a balance of probabilities, to be authentic.

[51] The second document was a copy of a paper. The concern was with the type face. The font was one that was not available on typewriters (the machines being used at the time) and, in particular, those owned and used by Health and Welfare Canada. As it turned out, there was a suggestion that the paper had been printed at a private facility that sometimes undertook this work on Health and Welfare Canada’s behalf. It was possible the machines that company owned used the font in question.

[52] There were two copies of this paper both accompanied by a covering memo. The covering memo was the same except that the date had been changed. One has a typed date “May 28, 1981”. On the second, this date was struck out, by hand, and replaced with a written date “Feb. 18, 82”. There was some further handwriting on the second version of the covering memo. This was explained. The paper was used twice in support of an annual submission to Treasury Board. The handwriting and hand printing on the covering memo seemed to be “contemporary” that is consistent with the date on the documents rather than “anachronistic” suggesting the documents were prepared some later time. The paper and the covering memos taken together were found, on a balance of probabilities, to be authentic.[^47]

[53] There was another paper apparently given by Pierre Blais at a conference in Hamilton during 1987. The Crown objected to any reliance being placed on it. For any paper to be given by a scientist employed by the Crown, it must be approved by senior management. There is a form to be completed and signed confirming the approval. There was such a form for the paper in question. However, in reviewing the files, another, apparently earlier approval form for another paper, was located. When one of the approval forms was transferred to plastic film and laid over the other, the bottom halves, the part of the page with the signatures and dates written into the form match exactly. It was apparent that one was copied from the other.[^48] Contrary to the submissions made on behalf of the Plaintiff, there was a finding of fraud, albeit limited to one of the four documents. It had an impact on how the evidence of Pierre Blais was received. It led to the following conclusion:

I wish to be clear about the appropriate implications to be taken from this finding.

There is, I suppose, the possibility of a benign explanation for the falsifying of the approval form. None was offered. More importantly, I am not prepared out-of-hand and based solely on this determination to ignore or take as false all the evidence provided by Pierre Blais. He was a long-time employee of Health and Welfare Canada and, despite some difficulty, particularly around his departure was, his employment reviews suggest, a valued one. What is appropriate is to weigh his evidence carefully against what others have said where that evidence appears to be probative and helpful to the Court in deciding the issues.[^49]

[54] In making their submissions as to costs, counsel for the representative Plaintiff were critical of the Crown. There were witnesses it could have called that could have shed light on the authenticity of the impugned documents. Since these individuals were not called, an adverse inference should be drawn suggesting that their evidence would have confirmed the validity of the documents. The problem with this submission is that it cuts both ways. The consideration of the issue was undertaken as a separate hearing at the end of the evidence. It was open to the Plaintiff to recall Pierre Blais. Counsel on her behalf chose not to do so. Moreover, the hearing of this issue was delayed until the end of the evidence to allow the Plaintiff to retain an expert and to give the expert time to prepare. In the end no expert was called. Whether this is because the work to be undertaken was not completed or because the expert had nothing to offer was never made clear. Be that as it may, the fact is that there was no evidence questioning the findings of the experts from the Canada Border Service, in particular with respect to the approval form that was found to have been copied from another.

[55] The concern for the evidence of Pierre Blais was not restricted to the presence of the forged approval form:

The evidence, taken as a whole, suggests that Pierre Blais did not play the role he has defined for himself. Some of the employees at the Health Protection Branch had never met him, others say he played no role they are aware of in respect of Proplast and others say his primary interest was with the difficulties being encountered with breast implants.[^50]

[56] These concerns have to be measured against the importance attributed to his evidence, by the Plaintiff, on whose behalf he was called:

From the perspective offered by the Plaintiff, Pierre Blais was central to the understanding, within Health and Welfare Canada, of Proplast and its dangers. Attention was drawn to meetings and conferences he said he attended, papers he wrote, a book he contributed to and warnings he said he instilled in more senior officials at Health and Welfare Canada. With a closer look, the idea of this pivotal role dissipates in the uncertainty and confusion that accompanied his participation in the events he referred to and in the trial.[^51]

[57] If this analysis ended here:

• the unwillingness of the Crown to account for the broader implications of this action, as a matter of access to justice and the public interest and the impact of its own actions in the delay in bringing this matter to conclusion,
• in company with the representative Plaintiff’s contribution to that delay and the failure to properly understand the difficulties with the evidence of Pierre Blais, not the least of which was the unexplained improperly copied approval form,

would lead me to confirm, now more fully formed with the benefit of the parties’ submissions, to the determination that this is a circumstance where no costs should be awarded. Both O.H.I.P. and the Law Foundation of Ontario support this as the appropriate resolution. However, with the submissions in hand, it is apparent that there is more that should to be taken into account.

[58] These concerns reflect on activities and actions taken on behalf of the representative Plaintiff and their impact on the need for, length of, and issues raised throughout the proceeding and at the trial.

[59] The initial representative Plaintiff was not Kathryn Anne Taylor. It was Judith Logan. An effort was made to add, as a Plaintiff, Wendy Bulloch-MacIntosh. She had commenced an individual action. There was a threshold issue. Could the individual action be stayed but left in place if Wendy Bulloch-MacIntosh became a representative Plaintiff in the class action? Initially, the judge considering the matter indicated a willingness to hear further submissions. In the end, the Plaintiff withdrew the request.[^52]

[60] Based on the evidence provided at trial there is no certainty that any of the individual witnesses, said to be members of the class were recipients of implants that had received a Notice of Compliance by the government and contained the impugned product (proplast). In her submission in response to the Crown’s request for costs it is said, on behalf of the representative Plaintiff, that membership in the class, as certified, did not require that the medical device implanted, have received a Notice of Compliance. At the time of certification, it was understood that the cause of action relied on the proposition that some of those who received implants had been implanted with devices identified by the government as having received Notices of Compliance when they had not. In its final submissions, the Plaintiff resiled from this position. Rather it was said those devices had been approved. This being so, there are only two bases on which negligence could be attributed to the Crown. One was the actions and response of the Crown once the problems with proplast were recognized and accepted. This was considered in the decision and dismissed. The second was negligence within the approval process. There cannot be negligence in the granting of Notices of Compliance when in fact the applications were refused, and Notices of Compliance were not issued. Not one of the individual witnesses was shown definitively to have been implanted with a device that at the time it was implanted had received a Notice of Compliance.

[61] This raises the question as to whether there is a class to which the Crown was liable.

[62] The Plaintiff, at the time of certification estimated that the size of the class to be 2,600 persons. This was based on nothing more than the estimate that there were 26,000 implants in the United States. The population of Canada is about 10 % of that of the United States. That percentage was applied to 26,000 to arrive at 2,600. At the first certification (September 5, 2007), this number was rejected by the judge. He found that the class might not exceed 200.[^53] That the class would be much smaller was confirmed by the Court of Appeal. At the time it heard the special case, it found that it was arguable that the alleged misrepresentations, combined with the failure to correct the misrepresentations posed a risk but only to a “clearly definable and relatively small group of consumers”.[^54] Even so, in her final submissions, the representative Plaintiff continued to assert that the class had approximately 2,500 to 2,600 members.[^55]

[63] The size and characteristics that defined membership in the class were never reasonably understood. This broadened the parameters that determined the relevance of the evidence and lengthened the trial.

[64] The action named only the Attorney General for Canada as a Defendant. There are others who would be involved in the importing, marketing, selling, purchasing, implanting and observing the results of any surgery associated with the placing of the implants. These would include the manufacturer, the distributor, the hospital and various doctors and other professionals. The Crown issued Third Party Claims. The Plaintiff moved to strike them. Her counsel was insistent that the Plaintiff’s claim was that the Crown was liable for all of the damage she had suffered. The motion was dismissed but not before counsel for the Plaintiff had a change of heart. On a subsequent appearance, counsel indicated that should it be found that others shared the blame, the Plaintiff was seeking an award only for the Crown’s proportionate share.[^56]

[65] In the months just prior to the commencement of the trial, counsel for the Plaintiff brought the motion seeking to strike out the Statement of Defence. At the conclusion of their submissions counsel changed his position and sought further production and discovery. The Crown was unable to respond. It had prepared to answer what the Master referred to as the Plaintiff’s “aggressive and exclusive pursuit of dismissal of the Defence”.[^57] As a result, the Master adjourned the motion and sent the matter back to the case management judge who delayed the trial allowing for the ten motions to be heard by the Master.

[66] As already noted, at the time of the Special Case heard by the Court of Appeal, the Plaintiff took the position that a principal indication of the negligence of the Crown arose from its alleged misrepresentation that certain of the products of concern (the implants) had been approved when they had not been and the failure of the Crown to rectify the error. This allegation was a fundamental foundation for the acceptance by the Court of Appeal that the proximity between the Crown and the recipients of the implants necessary to prove negligence could be present and for it allowing the action to proceed. The Court of Appeal noted:

The sustainability of Ms. Taylor's claim at this stage of the proceedings depends primarily on the allegations of Health Canada's misrepresentations as to the status of the Vitek implants between 1988 and 1990 and its failure to correct those misrepresentations in the following years during which the implants were sold into Canada without proper authorization and the evidence of the danger posed by those implants continued to mount. Those allegations can be summarized as follows:

• sometime in 1988, Health Canada wrongly represented in its database that it had issued a notice of compliance referable to the Vitek implants;

• at various times in 1989, Health Canada, through its officials, repeated the misrepresentation concerning the status of the Vitek implants and indicated that Vitek had filed data establishing the safety of the implants to Health Canada's satisfaction;

• in 1990, Health Canada discovered that it had wrongly represented that the Vitek implants had received a notice of compliance, but it took no steps to advise users or potential users of the implants or their health care professionals of Health Canada's misrepresentation;

• to Health Canada's knowledge, Vitek continued to sell implants in Canada between 1988 and 1990, without the requisite notice of compliance…[^58]

[67] At the outset of the trial, as part of his opening statement counsel for the representative Plaintiff confirmed this understanding:

THE COURT: Oh. This is the thing [referring to Information Letter 765] that says it’s been approved when it really hadn’t been? Is that what this is?

MR. LEGGE: That’s what I am saying.[^59]

[68] Counsel went on to propose that the negligence that would be demonstrated, as the evidence proceeded, was the failure to withdraw the statement that the devices in question had received Notices of Compliance when they had not.

[69] This allegation remained the underpinning of the Plaintiff’s case throughout the trial. Only with the delivery of final argument, which was written and delivered weeks after the evidence had been completed, was this position disavowed and reliance placed on the approval of the implants that had been, until then, said not to have been approved. To repeat what was said in the decision, this was important. The Crown not having understood the position of the Plaintiff to be that, in fact, Notices of Compliance had been issued, was denied the ability to question any witness, particularly those it called, as to this understanding of the circumstances.[^60]

[70] For the purpose of considering whether and in what amount an award of costs should be made I add this to the difficulty in understanding the make-up of the class. The courtroom is not a place to try out ideas and then change position when things go wrong. Motions to add parties, strike third party notices and statements of defence and understanding positions which form the foundation for the cause of action should be fully thought through before taking up the time of the other parties and the court. These added to the delay and contributed to the Plaintiff as the unsuccessful party. These changed positions along with the problem of understanding the class contributed to the length and expense of the proceeding as a whole and the trial.

[71] Costs are to be paid by the Plaintiff. She was the unsuccessful party. I fix costs on the following basis. The two most senior lawyers who acted on behalf of the Crown at the trial each seek costs at a rate of $350.00 per hour. If it is assumed that they both worked 10 hours each day of the 55-day trial the cost would be: 2 lawyers X $350 X 10 hours X 55 days which I calculate as a total of $385,000.

[72] Costs to be paid on behalf of the Plaintiff to the Defendant in the amount of $385,000.

[73] I am not prepared to find O.H.I.P. jointly and severally liable for these costs. It may be that O.H.I.P. went hand in hand with the representative Plaintiff but that was in circumstances where the conduct of the action lay largely with the counsel for the representative Plaintiff. I find the O.H.I.P. liable for 10% of the award made being $38,500.

[74] The remainder to be paid by the Law Foundation of Ontario.

[75] Finally, the $385,000 is to be paid as including any tax that may be owing with respect to these costs and to be paid in full if, this being the payment of costs to the Crown, there is no tax to be paid.

Lederer, J.

Date: December 18, 2020

[^1]: R.S.O. 1990 c. C. 43 at s.131

[^2]: R.R.O. 1990, Reg. 195 Rules of Civil Procedure: 57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, (0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (a) the amount claimed and the amount recovered in the proceeding; (b) the apportionment of liability; (c) the complexity of the proceeding; (d) the importance of the issues; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (g) a party’s denial of or refusal to admit anything that should have been admitted; (h) whether it is appropriate to award any costs or more than one set of costs where a party, (i) commenced separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and (i) any other matter relevant to the question of costs.

[^3]: S.O. 1992, c. 6 at s. 31

[^4]: Taylor v. Canada (Attorney General), 2020 ONSC 1192 at para. 37

[^5]: Ibid at para. 8 quoting from an Endorsement of Master MacLeod dated July 25, 2001 at para. 12.

[^6]: Ibid at para. 65 quoting from Taylor v. Attorney General of Canada, 2018 ONSC 7235 at para. 21.

[^7]: Ibid at para. 69

[^8]: Ibid at para. 70

[^9]: Ibid at paras. 639-640

[^10]: Cost Submissions of the Defendant, the Attorney General of Canada at para. 1

[^11]: Reply Cost Submissions of the Defendant, the Attorney General of Canada at para. 7

[^12]: Hughes v. Liquor Control Board of Ontario, 2018 ONSC 4862 at para. 72 itself referencing: • after the word “litigant in the third line: Incredible Electronics Inc. v. Canada (Attorney General), 2006 17939 (ON SC), [2006] O.J. No. 2155 (S.C.J.); C. Tollefson, "Costs in Public Interest Litigation Revisited" (2011), 39 Adv. Q. 197; and C. Tollefson, "Costs in Public Interest Litigation: Recent Developments and Future Directions" (2009) 35 Advocates' Q. 181 • after the word “litigation in the fifth line: Smith v. Inco Ltd., 2012 ONSC 5094; Pearson v. Inco Ltd. (2006), 2006 7666 (ON CA), 79 O.R. (3d) 427 (C.A.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 63806 (ON SC), 74 O.R. (3d) 728 at para. 36 (S.C.J.); Moyes v. Fortune Financial Corp., [2002] O.J. No. 4298 at para. 6 (S.C.J.); Gariepy v. Shell Oil Co., [2002] O.J. No. 3495 (S.C.J.); Williams v. Mutual Life Assurance Co. of Canada, 2001 62796 (ON SC), [2001] O.J. No. 445 at paras. 24-26 (S.C.J.), and • after the word “concept” in the seventh line: McLaine v. London Life Insurance Co., [2008] O.J. No., 2360 at paras. 14-17 (Div. Ct.); Vennell v. Barnado's (2004), 2004 33357 (ON SC), 73 O.R. (3d) 13 at paras. 28-29 (S.C.J.). The paragraph goes on: A public interest litigant is usually a litigant that advocates a matter of public importance but with little or nothing personally to gain financially from participating in the litigation. However, that a proposed representative Plaintiff brings an action out of a bona fide concern to vindicate his or her concern for the public interest does not necessarily insulate that person from an award of costs. [Emphasis by underlining added] Itself referencing: • after the word “litigation: in the third line: Mahmood v. Ottawa (City), 2017 ONSC 5138; Incredible Electronics Inc. v. Canada (Attorney General) (2006), 2006 17939 (ON SC), 80 O.R. (3d) 723 (S.C.J.) and • after the word “costs” at the end of the quotation: Arenson v. Toronto (City), 2012 ONSC 4488 at para. 7; Consumers' Association of Canada v. Coca-Cola Bottling Co., [2006] B.C.J. No. 1879 at paras. 25-27 (B.C.S.C.), aff’d 2007 BCCA 356, [2007] B.C.J. No. 1625 (C.A.).

[^13]: Taylor v. Canada (Attorney General), supra (fn. 4) at para.1

[^14]: Ibid at para. 2

[^15]: Das v George Weston Ltd, 2018 ONCA 1053 at para 248; see also Williams v Mutual Life Assurance Co. of Canada (2001), 2001 62796 (ON SC), 6 CPC (5th) 194 (Ont Sup Ct) at paras 24–26; Gariepy v Shell Oil Co, [2002] OJ No 3495 (Ont Sup Ct); Caputo v Imperial Tobacco Ltd. (2005), 2005 63806 (ON SC), 74 OR (3d) 728 (Ont. Sup Ct) at para 36; Pearson v Inco Ltd. (2006), 2006 7666 (ON CA), 79 OR (3d) 427 (CA).

[^16]: Cost Submissions of the Defendant the Attorney General of Canada at para. 13

[^17]: Drady v. Canada, 2007 27970 (ON SC), [2007] CarswellOnt 4631, [2007] OJ No 2812 (QL), 159 ACWS (3d) 177

[^18]: 2008 ONCA 660, 93 OR (3d) 35, 300 DLR (4th) 415, 254 OAC 91, 59 CPC (6th) 195, [2008] OJ No 3766 (QL), 169 ACWS (3d) 684

[^19]: Sauer v. Canada (Attorney General), 2007 ONCA 454, 225 OAC 143, 31 BLR (4th) 20, 49 CCLT (3d) 161, [2007] OJ No 2443 (QL), 159 ACWS (3d) 306

[^20]: Taylor v Canada (Health), 2010 ONSC 4799, 81 CCLT (3d) 106, [2010] OJ No 5936 (QL) at para. 73

[^21]: Taylor v. Canada (Attorney General), 2011 ONCA 181, 104 OR (3d) 481, 277 OAC 126, [2011] OJ No 949 (QL) at para. 34

[^22]: Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 OR (3d) 161, 352 DLR (4th) 690, 293 OAC 312, 95 CCLT (3d) 88, [2012] OJ No 3208 (QL) at para. 97

[^23]: Ibid at paras. 63 and 98

[^24]: Taylor v Canada (Health), supra (fn.20) at para. 73

[^25]: Cost Submissions of the Defendant the Attorney General of Canada at para. 14

[^26]: Ibid at para. 4 citing Hughes v. Liquor Control Board of Ontario, supra (fn. 11) at paras. 78 and 121. I note that the Defendants in that case did not include the Crown. They were the Liquor Control Board of Ontario and an assortment of private corporations concerned with the production and marketing of beer.

[^27]: R.S.O. 1990 c. H.6

[^28]: R.R.O. 1990, Reg. 552: General at s. 39(6) subsection (8) as referred to states: The costs for which the Plan may be liable to bear a portion under subsection (6) are the costs of bringing the action to the conclusion of the trial only and do not include the costs of any other proceeding without the written consent of the General Manager.

[^29]: Cost Submissions of the Defendant the Attorney General of Canada at para. 7

[^30]: 2012 ONSC 657,

[^31]: Meady v. Greyhound Canada Transportation Corp., 2013 ONSC 5568 at para. 86

[^32]: 1997 12142 (ON SC), [1997] O.J. No. 1990

[^33]: The case was appealed. The appeal was dismissed. However, based on an undertaking by counsel for the respondents not to pursue the appellants for the costs of the trial or seek costs of the appeal, the Court of Appeal varied the costs order made at trial to provide the appellants had no obligation for the respondent’s costs (see: Marchand v. The Public General Hospital Society of Chatham, 2000 16946 (ON CA), 51 OR (3d) 97, 138 OAC 201, 43 CPC (5th) 65).

[^34]: Law Society Act R.S.O. 1990, c L. 8, s. 59.4

[^35]: McCracken v. Canadian National Railway Company, 2012 ONCA 797, 5 CCEL (4th) 327 at para. 10

[^36]: Das v. George Weston Limited, 2018 ONCA 1053 at para. 251 referring to McCracken v. Canadian National Railway Company 2012 ONSC 6838, 31 CPC (7th) 237 at paras. 57-58, as follows: As noted by the Court of Appeal in fixing costs for CN’s successful appeal in the immediate case, if the Law Foundation were required to absorb steep cost awards imposed on litigants even though the factors in s.31 (1) of the Act were engaged; that is, if it were required to indemnify defendants simply because it had assumed the risk of doing so and was capable of paying, this would have an undesirable chilling effect on class proceedings, whose main purpose is to facilitate access to justice. It seems obvious to me that exposure to an adverse costs award in the hundreds of thousands of dollars would deter access to justice because those who might support the claimants in advancing their claim will be deterred from offering that support or the supporters will be reserved and far more cautious in offering support. The Law Foundation, as a supporter of those seeking access to justice, obviously will be deterred in providing support, if it was exposed to enormous costs awards.

[^37]: 2008 5962 (ON SC), 90 OR (3d) 59, [2008] OJ No 599 (QL)

[^38]: Ibid at paras. 51-54

[^39]: Ibid at para. 55

[^40]: Taylor v. Canada (Attorney General), supra (fn. 4) at para. 91

[^41]: 2004 9479 (ON CA) 250 DLR (4th) 526, 183 OAC 310, 42 BLR (3d) 34, 32 CCEL (3d) 68, [2004] OJ No 636 (QL), 137 ACWS (3d) 742

[^42]: Ibid at para. 13

[^43]: UPM-Kymmene Corp. V. UPM-Kymmene Miramichi Inc., 2002 11098 (ON SC) at para. 19

[^44]: 2004 SCC 9, [2004] 1 SCR 303, 235 DLR (4th) 193, 316 NR 265, 184 OAC 209, 40 BLR (3d) 1

[^45]: Ibid at para. 26 also referring to M. M. Orkin, The Law of Costs (2nd ed. (loose-leaf)), at para. 219

[^46]: Taylor v. Canada (Attorney General), supra (fn. 4) at paras.108-111

[^47]: Ibid at paras.121 -128

[^48]: Ibid at paras. 241-247

[^49]: Ibid at paras. 248-249

[^50]: Ibid at para. 104

[^51]: Ibid at para. 91

[^52]: Ibid at para. 4 referencing: Trial Record at T. 11 and T. 12 (Endorsements of Mr. Justice Winkler respectively dated February 13, 2002 and May 15, 2002.)

[^53]: Ibid at para. 49 quoting Taylor v. Canada (Health) 2007 36645 (ON SC) at para. 60

[^54]: Ibid at para. 50 quoting Taylor v. Canada (Attorney General, supra (fn. 22) at para. 111

[^55]: Ibid at para. 51 referring to Submissions of the Plaintiff at para.3

[^56]: Ibid at paras.39-41

[^57]: Ibid at para. 60 referencing Taylor v. Attorney General of Canada, 2018 ONSC 6808 at para. 7

[^58]: Ibid at para. 361 quoting Taylor v. Canada (Attorney General), supra (fn. 20) at para. 109

[^59]: Ibid at para. 363 quoting Transcript of Opening Submissions (April 1, 2019) at p. 71

[^60]: Ibid at para. 364 referencing Transcript of Opening Submissions (April 1, 2019) at pp. 73-74