Court File and Parties

COURT FILE NO.: CV-15-536174CP DATE: 2023-06-08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS’ PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES Plaintiffs

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ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, BANK OF MONTREAL, BMO FINANCIAL CORP., BMO HARRIS BANK N.A., BMO CAPITAL MARKETS LIMITED, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P. MORGAN BANK CANADA, J.P. MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, TORONTO DOMINION BANK, TD BANK. N.A., TD GROUP HOLDINGS, LLC, TD BANK USA, N.A., TD SECURITIES LIMITED, UBS AG, UBS SECURITIES LLC, AND UBS BANK (CANADA) Defendants

Proceeding under the Class Proceedings Act, 1992

Counsel: Daniel Bach, Alex Dimson, David Sterns, Louis Sokolov, Kirk M. Baert, Sue Tan, Reidar Mogerman, David G.A. Jones for the Plaintiff

HEARD: In Writing

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] This class action is in the settlement administration phase. Class member claims have been submitted and are currently being reviewed by Epiq Class Action & Claims Solutions, Inc., the Claims Administrator.

[2] The Claims Administrator will issue decision letters to claimants to advise them whether their claims have been accepted or rejected. Claimants who disagree may file an appeal in writing. The Administration Protocol contemplates that any such appeals will be decided by a bilingual arbitrator appointed by the Ontario and Québec courts.

[3] On this motion, Class Counsel seeks an order appointing Doug Mitchell as the arbitrator to assess any appeals filed by claimants.

B. Factual Background

[4] Under the court approved settlement agreement, the distribution of settlement funds is governed by the Administration and Distribution Protocols, which were approved by this court on July 4, 2018 and subsequently amended by orders dated August 1, 2019 and November 26, 2020.

[5] The Administration Protocol provides that to claim compensation, a class member must file a claim with the Claims Administrator. If the Claims Administrator determines that deficiencies exist in a claim, the Claims Administrator must provide the claimant with 60 days to remedy the deficiencies. Following the deficiency period, the Claims Administrator must send claimants a decision notice that advises claimants whether their claim has been approved or rejected. Class members may appeal the rejection or re-categorization of their claim. The Administration Protocol contemplates that any appeals will be determined by a bilingual arbitrator appointed by the Ontario and Québec courts.

[6] Class Counsel proposes that Doug Mitchell, a partner with the law firm of IMK LLP, be appointed as the arbitrator.

[7] Mr. Mitchell was called to the Barreau du Québec in 1989 and began practising in the litigation department of the firm then known as McMaster Meighen (today, Borden Ladner Gervais). In 1997, Mr. Mitchell started a litigation firm which was then known as Colin Irving & Associates. Today, the firm is known as IMK LLP. There are 26 lawyers in the firm, practising in the area of civil and commercial litigation. Mr. Mitchell’s practice has been exclusively concentrated in civil litigation. He has a great deal of experience in multi-jurisdictional claims, both with regard to general issues and with class actions. He regularly acts in arbitration matters, both as counsel and as arbitrator. Mr. Mitchell was made a fellow of the American College of Trial Lawyers in 2009. Mr. Mitchell has pleaded fluently bilingual in French and English.

[8] Mr. Mitchell has reviewed the Administration and Distribution Protocols and is aware of the duties and responsibilities as an arbitrator. He has agreed to serve as the arbitrator, subject to approval by this court, to review and assess appeals from decisions of the Claims Administrator impartially in accordance with the terms of the protocols.

[9] Mr. Mitchell has agreed to an hourly rate of $700. Other lawyers or students from IMK LLP may assist Mr. Mitchell in his review of appeals. Their hourly rate will be that normally charged by them, based on their number of years at the Bar as well as their relevant experience. Their rates are expected to range between $200 and $275.

[10] Mr. Mitchell has no interest in the outcome of these appeals or other affiliation which might result in an actual or perceived conflict of interest if he is appointed as the arbitrator.

C. Discussion and Conclusion

[11] The court is empowered by section 12 of the Class Proceedings Act, 1992 to make “any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination.”

[12] As noted above, the Administration Protocol provides that any appeals will be heard by an arbitrator appointed by the Ontario and Québec courts. The Administration Protocol was approved by this court and held to be “ fair, reasonable, and in the best interests of the class.” [1]

[13] The order sought on this motion gives effect to the fair and reasonable administration process previously approved by this court. As required by the Administration Protocol, Mr. Mitchell is fluently bilingual and has years of relevant experience. His appointment will facilitate the fair and expeditious determination of class member appeals.

[14] In Harper v American Medical Systems Canada Inc. [2] (a class action related to pelvic mesh devices), this court appointed a referee to hear any appeals from the claims administrator. As in the within case, the appointment of a referee was required by the compensation protocol. The order granted by the court was very similar to the order sought in this action.

[15] Subject to a parallel or equivalent order being made by the Québec Superior Court in Béland v Banque Royale du Canada et al, Court File No. 200-06-000189-152, I make the following Order: a. Doug Mitchell be appointed to adjudicate any appeal(s) filed by class members in response to Claims Administrator’s determination of claims; b. Any such appeal(s) shall be conducted in accordance with the process set out in paragraphs 17-23 of the Administration Protocol; c. No person shall have any claim against Doug Mitchell arising from or relating to the fulfilment of his responsibilities pursuant to the Administration Protocol; and d. Fees and disbursements incurred by Doug Mitchell in relation to class member appeals, and applicable taxes, be paid by the Claims Administrator from the settlement funds held in trust by the Claims Administrator.

[16] Order accordingly.

Perell, J. Released: June 8, 2023

Footnotes

[1] Mancinelli v. Royal Bank of Canada, 2018 ONSC 4192. [2] Harper v American Medical Systems Canada Inc., 2020 ONSC 8090.