COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and
DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
Margaret Waddell, Tina Q. Yang, Kate Mazzucco, Josh Nisker, Paul Miller, and Valérie Lord for the Plaintiffs.
Nina Bombier, Paul-Erik Veel and Brianne Westland for the Defendants.
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION – COSTS (No. 2)
[1] This is a reconsideration of a costs decision. For my original decision, I was under the misunderstanding that the Defendants had not delivered responding costs submissions, but it turns out that their costs submissions had not been brought to my attention.
[2] My original costs endorsement[^1] was as follows:
[1] In this proceeding under the Class Proceedings Act, 1992, the Plaintiffs were successful in obtaining certification of their action. The parties agreed that if costs are payable to the Plaintiffs, the amount that is fair and reasonable is $150,000, all inclusive.
[2] The Parties also agreed to $5,000, all inclusive, as the amount of the costs with respect to a motion to strike the supplementary Paul Miller affidavit. I ordered the costs of this motion payable “in the cause of the certification motion,” and given that the Plaintiffs succeeded on the certification motion, the Plaintiffs are content that this amount be included within the $150,000 sought for the certification motion.
[3] It was anticipated that the Defendants might argue for a reduction of the $150,000 given their argument at the certification motion that there was in effect two certification motions and therefore ultimate success was divided. However, the Defendants did not deliver any costs submissions, and therefore, the Plaintiffs’ request for costs of $150,000 is unopposed.
[4] I agree that costs of $150,000 are fair, reasonable, and appropriate in the circumstances of the immediate case. I, therefore, award the Plaintiffs costs of the certification motion fixed in the amount of $150,000, all inclusive, payable within sixty days.
[5] Order accordingly.
[3] The Defendants submit that there should be no order as to costs because of the divided success of the parties on the certification motion. Their thesis is that the Plaintiffs advanced two entirely distinct cases for certification but only one of them was certified. The Defendants submit that there was no reason for the two cases to have been joined in a single action and awarding costs will encourage such joining of claims in the future, with plaintiffs trying to join distinct speculative claims with straight-forward claims, as a way to insulate themselves from any costs exposure on the speculative claims.
[4] The premises of the Defendants’ argument that there were entirely distinct cases for certification and that there was no reason for the two cases to have been joined in a single action are false premises. (It is incorrect to say in the immediate case that the Plaintiffs’ uncertified cause of action was speculative.)
[5] In the immediate case, the joinder of claims was entirely proper, and the joinder was consistent with one of the driving principles of the Rules of Civil Procedure and of class proceedings that a multiplicity of proceedings is to be avoided. See s. 138 of the Courts of Justice Act.[^2]
[6] The joinder of parties and of causes of action is governed by Rules 5.01 to 5.05 which state:
[7] The relevant Rules of Civil Procedure are rules 5.01 to 5.05, which are the rules about the joinder of parties and of and causes of action. These rules state:
PARTIES AND JOINDER
RULE 5 JOINDER OF CLAIMS AND PARTIES
Joinder of Claims
5.01 (1) A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant has against an opposite party.
(2) A plaintiff or applicant may sue in different capacities and a defendant or respondent may be sued in different capacities in the same proceeding.
(3) Where there is more than one defendant or respondent, it is not necessary for each to have an interest in all the relief claimed or in each claim included in the proceeding.
Joinder of Parties
Multiple Plaintiffs or Applicants
5.02 (1) Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants in the same proceeding where,
(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding; or
(c) it appears that their joining in the same proceeding may promote the convenient administration of justice.
Multiple Defendants or Respondents
(2) Two or more persons may be joined as defendants or respondents where,
(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding;
(c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;
(d) damage or loss has been caused to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief or the respective amounts for which each may be liable; or
(e) it appears that their being joined in the same proceeding may promote the convenient administration of justice.
JOINDER OF NECESSARY PARTIES
General Rule
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
Relief Against Joinder of Party
(6) The court may by order relieve against the requirement of joinder under this rule.
Misjoinder, Non-joinder and Parties Incorrectly Named
Proceeding not to be Defeated
5.04 (1) No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.
Adding, Deleting or Substituting Parties
(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
Adding Plaintiff or Applicant
(3) No person shall be added as a plaintiff or applicant unless the person’s consent is filed.
Relief Against Joinder
5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,
(a) order separate hearings;
(b) require one or more of the claims to be asserted, if at all, in another proceeding;
(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;
(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or
(e) make such other order as is just.
[8] In the immediate case, pursuant to rule 5.01, the Plaintiffs were entitled to join in one action all the causes of action they had against the Defendants. The Defendants did not move to sever the joined causes of action pursuant to rule 5.05.
[9] While the joined claims may have been different, they arose from common activities at the Defendants’ clinic and both probed aspects of the law of privacy as it is developing in Canada.
[10] The parties made their agreement about costs when the claims were joined in one action, and while the Defendants reserved the right to make the argument that there should be no order as to costs, subject to that reservation they agreed that the Plaintiffs could receive $150,000 if they succeeded on one but not the other cause of action.
[11] I disagree with the Defendants’ argument about divided success, and I confirm my original costs award.
Perell, J.
Released: July 26, 2021.
COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and
DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
REASONS FOR DECISION – COSTS (No. 2)
PERELL J.
Released: July 26, 2021
[^1]: G.C. v. Jugenburg, 2021 ONSC 5144
[^2]: R.S.O. 1990, c. C.43.