William Jung v. Restaurant Brands International Inc. et al.

Court File and Parties

COURT FILE NO.: CV-20-648562-00CP

DATE: 20211208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Jung

AND:

Restaurant Brands International Inc., Restaurant Brands International Limited Partnership, the TDL Group Corp., BK Canada Service ULC and Radar Labs Inc.

BEFORE: J.T. Akbarali J.

COUNSEL: Sean Campbell, Michael O’Brien and Judith Manger, for the Plaintiff

Catherine Beagan Flood, Nicole Henderson and Gregory Sheppard, for the Defendants Restaurant Brands International Inc., Restaurant Brands International Limited Partnership, the TDL Group Corp., BK Canada Service ULC

Mark S. Hayes, for the Defendant Radar Labs Inc.

HEARD: December 2, 2021

Proceeding under the Class Proceedings Act, 1992

Endorsement

Overview

[1] Counsel for the putative class in this proposed class action has reached a consortium agreement with class counsel in an overlapping putative class proceeding in British Columbia. Collectively, they have decided to proceed to seek certification of a national class in British Columbia.

[2] A dispute arose between the parties to the Ontario action as to whether an order for a stay was required in this proceeding, and if so, whether the stay should be permanent, or conditional.

[3] I heard the motion for a stay, but by the end of it, it appeared there was very little difference between the position of the moving party defendants (the defendants other than Radar Labs, which supported the other defendants’ position but filed no materials) and the plaintiff.

[4] With my encouragement, the parties were able to reach a consent order. It provides that the action is stayed, subject to further order of this Court.

[5] However, the parties (with the exception of Radar Labs) were unable to resolve the question of costs. No party seeks costs against Radar Labs, and Radar Labs does not seek costs against any party. This endorsement thus deals with the costs of the motion as between the plaintiff and the defendants other than Radar Labs.

Analysis

[6] The plaintiff argues that he is the successful party on the motion, and seeks his costs on a partial indemnity basis up to November 24, 2021, and his substantial indemnity costs thereafter. On this basis, he calculates his costs at $54,100.50, all inclusive.

[7] He relies on offers it made in July and August 2021 to take no steps in the Ontario proceeding pending the outcome of the certification hearing in BC, and on a formal offer to settle dated November 24, 2021 to agree to a stay with terms stipulating that the plaintiff would take no steps in the Ontario action before or after the certification decision in BC without the consent of the defendants or leave of the court. He argues that, in substance, the consent order is the same as its November 24, 2021 offer.

[8] For their part, the defendants argue that they are the successful parties, because they sought the stay of the action subject only to the court’s inherent jurisdiction to lift a stay, without any temporal tie to the outcome of the certification motion in BC. They argue that this is what the consent order provides for. They seek their partial indemnity costs of $29,588.60, but note that their actual time exceeds the time reflected on their costs outline; consistent with the approach in Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), they have not included all docketed time in order to reflect what is appropriate, properly assessable, and fair and reasonable having regard to all the relevant factors.

[9] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[10] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher, at paras. 4 and 38.

[11] In my view, the fact that both parties make credible arguments as to why they are the successful party on the motion is a reflection of the fact that their positions on the motion were almost the same. One explicitly sought a permanent stay, subject to the court’s jurisdiction to lift it. The other explicitly sought a conditional stay, subject to the court’s jurisdiction to lift it.

[12] While I am grateful to the parties for opening the lines of communication and coming to a consent order, they could have, and should have, done so earlier.

[13] I am of the view that this is an appropriate case for each party to bear their own costs.

[14] Order to go as per the draft I have signed.

J.T. Akbarali J.

Date: December 8, 2021