COURT FILE NO.: CV-19-78997-CP
DATE: 2021/04/01
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE
Proceeding under the Class Proceedings Act, 1992
RE: Marcel Pinon, Plaintiff
AND:
City of Ottawa, Defendant
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Anthony Tibbs & Evatt Merchant, Q.C., for the Plaintiff
Ranjan K. Agarwal & Ashley Paterson, for the Defendant
HEARD: March 29, 2021
COSTS DECISION
[1] On January 21, 2021, I released reasons refusing certification of this proposed class action (2021 ONSC 488). Although the plaintiff has the option to continue the action as an individual action or to seek to amend the pleadings and bring another certification motion, there is no doubt that the initial motion was not successful.
[2] There is no special costs regime for class proceedings. The normal rules apply. This means that presumptively, costs follow the event and are to be fixed and payable after each step in the proceeding. There are exceptions, of course, if the justice of the case requires it. As counsel for the plaintiff argues, there have been cases in which costs have not been awarded because the litigation, though unsuccessful, has been deemed to be in the public interest. In other cases, where the claim has evident merit and it would be unjust to award costs, the costs may be deferred. Ultimately, the award of costs remains discretionary although the exercise of discretion is channelled by the factors set out in Rule 57.01.
[3] I will not repeat the rationale set out in my reasons for dismissing the motion. I found that the plaintiff had intentionally structured the proposed litigation in a manner that I found made it inappropriate to certify it. Those were tactical decisions made by proposed class counsel. One of the other reasons for dismissing the motion was the lack of evidence relating to the benefit or necessity of a class proceeding given the access all members of the class have to no fault accident benefits and the number of tort actions already underway.
[4] In my view costs should follow the event. I am not persuaded that this particular litigation was in the public interest or that it would, for any other reason, be unjust to impose the usual order.
[5] The defendant asks for costs on a partial indemnity scale which is the usual scale of costs. Substantial indemnity costs are awarded rarely.
[6] The defendant claims partial indemnity costs of $244,439.89 ($195,078.60 in partial indemnity fees, $25,360.22 in taxes, and $24,001.07 in disbursements). The question, however, is not what the defendant spent in defending against certification although that is relevant. The question is what amount it is reasonable to visit upon the losing party in all of the circumstances?
[7] The plaintiff has a minor dispute with the disbursements. I agree that online legal research charges are not a proper disbursement. This is how legal research is conducted and the fees associated with using a value added or premium service are a cost of doing business. It may be proper to charge those fees to a client pursuant to the retainer agreement, but I do not believe they are appropriate in party and party costs. Fixing of costs is, in any event, not a mathematical or scientific exercise. It is not the same as assessment of costs and is intended to be a summary process. Of course, it should not be arbitrary, but the judge is not required to hear evidence, parse the docket sheets or engage in extensive examination of the accounts.
[8] This was a two-day hearing of reasonable complexity. Having regard to the factors set out in the cost outlines and the arguments presented by both parties, I consider a costs award of $160,000 inclusive of HST to be appropriate. I would also allow $22,000 for disbursements. This produces a total costs award of $182,000.00 which will be payable immediately.
[9] In conclusion, the costs of the motion are fixed at $182,000.00 inclusive of partial indemnity fees, HST and disbursements.
April 1, 2021
Mr. Justice C. MacLeod
COURT FILE NO.: CV-19-78997-CP
DATE: 2021/04/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Marcel Pinon, Plaintiff
AND:
City of Ottawa, Defendant
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Anthony Tibbs & Evatt Merchant, Q.C., for the Plaintiff
Ranjan K. Agarwal & Ashley Paterson, for the Defendant
COSTS DECISION
Mr. Justice C. MacLeod
Released: April 1, 2021