COURT FILE NO.: CV-20-643488-CP

DATE: 20210705

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

WORKMAN OPTOMETRY PROFESSIONAL CORPORATION, 1298928 ONTARIO LTD., THE SUIT SHOP CO. LTD., 2328867 ONTARIO INC (o/a BOOSTER JUICE 369, BOOSTER JUICE 388, BOOSTER JUICE 375, AND BOOSTER JUICE 452), 2635774 ONTARIO INC (o/a BOOSTER JUICE 275), 2660364 ONTARIO INC (o/a BOOSTER JUICE 200), IN HARMONY DANCE STUDIO LTD, RANA TAJI OPTOMETRY PROFESSIONAL CORPORATION

Plaintiffs

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AVIVA INSURANCE COMPANY OF CANADA, AVIVA GENERAL INSURANCE COMPANY, AVIVA CANADA INC., CO-OPERATORS GENERAL INSURANCE COMPANY, CONTINENTAL CASUALTY COMPANY, DESJARDINS GENERAL INSURANCE SERVICES INC., ECONOMICAL MUTUAL INSURANCE COMPANY, FEDERATED INSURANCE COMPANY OF CANADA, GORE MUTUAL INSURANCE COMPANY FOUNDATION, GORE MUTUAL INSURANCE COMPANY, INTACT INSURANCE COMPANY, INTACT FOUNDATION, LLOYD'S CANADA INC., MARC LIPMAN AS ATTORNEY-IN-FACT IN CANADA FOR LLOYD'S UNDERWRITERS, LLOYD'S UNDERWRITERS, NORTHBRIDGE GENERAL INSURANCE CORPORATION, NOVEX INSURANCE COMPANY, ROYAL & SUN ALLIANCE INSURANCE COMPANY OF CANADA, SGI CANADA INSURANCE SERVICES LTD., TD GENERAL INSURANCE COMPANY, TRAVELERS INSURANCE COMPANY OF CANADA, THE WAWANESA MUTUAL INSURANCE COMPANY and WYNWARD INSURANCE GROUP

Defendants

Proceeding under the Class Proceedings Act, 1992

BEFORE: Justice Edward Belobaba

COUNSEL: Sarah Armstrong, David Rosenbaum and Rachel Laurion for the defendants Intact and Novex / Moving parties Kirk Boggs and Jacqueline Palef for the defendant Gore Mutual / Moving party Mark Gelowitz, Laura Fric and Mark Sheeley for the defendant Economical Mutual / Moving party Michael Rosenberg, Christopher Hubbard, Hovsep Afarian, Eric Block, Sean Petrou, Sharanya Thavakumaran and Gabrielle Schachter for the plaintiffs in the 17 Served McCarthy Actions / Responding parties

HEARD: April 30, 2021 via Zoom video

COST AWARD

[1] In a decision released on May 27, 2021, I dismissed the defendant insurers’ motion to temporarily stay 17 individual actions pending the determination of certification.[^1] I dismissed the stay motion on the basis of substantial prejudice and found on uncontroverted evidence that:

[T]he requested stay would result in significant unfairness to the individual litigants who have obviously chosen not to participate in the class action and who wish to prosecute their claims expeditiously.

[2] The successful individual plaintiffs, all represented by McCarthy Tétrault LLP, ask for costs. The appropriate scale is partial indemnity. The only issue is the amount.

[3] This was a surprisingly hard-fought procedural motion with voluminous records and detailed factums. I say “surprisingly” because neither the underlying law nor the uncontroverted evidence justified such an over-the-top skirmish. My decision dismissing the stay motion was seven pages long and two of the pages quoted extensively from the uncontroverted evidence. If pressed, I could have written a three-page decision.

[4] The successful plaintiffs (represented on the stay motion by eight lawyers) ask for a staggering $86,589 inclusive of disbursements and taxes. And this is the reduced amount after they adjusted their original request to comply with the hourly rates set out in the Grid. Even in the absence of a comparative cost outline from the unsuccessful defendants, I have no difficulty concluding that the plaintiffs’ request is on its face excessive and unreasonable for what was a relatively simple and straight-forward stay motion.

[5] The defendants also point out (correctly) that the plaintiffs’ cost request should be reduced even more to reflect the actual hourly rate parameters set out in the Grid. I agree. The properly adjusted Grid-based amount is $$63,980 — which in my view is still excessive.

[6] The defendants submit that an award of $30,000 aligns with previous cost awards for stay motions and other preliminary motions in similar circumstances involving insurer defendants.[^2] In my view, a cost award in the range of $30,000 to $35,000 better reflects, and is more aligned with the complexity of this particular stay motion (little to none) and the continuing judicial concern about reasonableness and proportionality. However, and in fairness to the plaintiffs, it must be noted that the defendants did not provide the court with their own cost outline as is usually done when a successful party’s costs request is criticized as excessive and unreasonable.

Disposition

[7] Having considered all of the above and the factors listed in Rule 57.01(1), I find it fair and reasonable to fix costs at $35,000 all-inclusive, payable within 30 days by the defendant insurers to the plaintiffs.

Signed: Justice Edward Belobaba

Notwithstanding Rule 59.05, this Judgment [Order] is effective and binding from the date it is made and is enforceable without any need for entry and filing. Any party to this Judgment [Order] may submit a formal Judgment [Order] for original signing, entry and filing when the Court returns to regular operations.

Date: July 5, 2021

[^1]: Workman Optometry v. Aviva Insurance, 2021 ONSC 3843. [^2]: The defendants refer to Vaeth v North American Palladium Ltd., 2016 ONSC 6032, where this court awarded $20,000 to one successful party and $25,000 to the other successful party as costs for their respective stay motions in class action proceedings; and to 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corporation, 2008 27822 (SCJ) where this court awarded just over $38,000 in costs for a stay motion in the context of a class action (plus an additional $12,700 for the preparation and argument of a second stay motion at the certification hearing).