Court File and Parties

Court File No.: CV-20-00641242-00CP Date: 2023-07-20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: JODY DELORME Plaintiff - and – ALLSTATE INSURANCE COMPANY OF CANADA Defendant Proceeding under the Class Proceedings Act, 1992

Counsel: Andrew Monkhouse and Alexandra Monkhouse, for the Plaintiff F. Paul Morrison, Matthew G. Smith, and Seann D. McAleese, for the Defendant

Heard: In writing

PERELL, J.

REASONS FOR DECISION - COSTS

A. Introduction and Overview

[1] This is an employment law class action pursuant to the Class Proceedings Act, 1992. On January 31, 2023, Justice Belobaba certified the action as a class proceeding. Lee v. Allstate Insurance, 2023 ONSC 8 Sadly, he passed away before he could resolve the matter of the costs of the certification motion. I am now case managing the action, and the task of resolving the matter of costs has been assigned to me.

[2] Because the certification motion proceeded in two rounds following the adjournment of the Plaintiff’s first attempt to have the action certified and because of the diminished results of the second round, Justice Belobaba foresaw that resolving the matter of costs would be contentious. In his certification decision at paragraphs 43 and 44, Justice Belobaba wrote:

1. The costs analysis may prove challenging. This has been a protracted (and no doubt costly) motion for certification. Given the revisions made by the plaintiff during the adjournment, the defendant is right to press for some or all of the costs thrown away. The defendant is also right to point out the issues or areas where the plaintiff did not prevail.
2. The parties are in the best position to resolve what costs if any are payable by whom. I encourage this discussion. If no such resolution can be achieved within 30 days, counsel should advise and I will either grant an extension or provide a schedule for brief written submissions.

[3] The parties were unable to resolve what costs, if any, are payable by whom.

[4] The parties exchanged costs submissions; visualize: (1) Plaintiff’s Original Costs Submissions in Chief; (2) Plaintiff’s Revised Costs Submissions; (3) Defendant’s Responding Costs Submissions; (4) Plaintiff’s Reply Submissions; (5) Defendant’s Sur-Reply Submissions; and (6) Plaintiff’s Sur-Sur-Reply Submissions.

[5] The Plaintiff claims costs on a partial indemnity scale of $474,671.74 (all inclusive of HST of $54,380.04 and disbursements of $2,983.70).

[6] The Defendant submits that the Plaintiff should recover costs of $159,842.35. The Defendant then claims offsetting (actually overtopping) costs thrown away of $212,783.52 (all inclusive of HST) for a costs claim payable to it of $52,941.17.

[7] For the reasons that follow, I order that there be no order as to costs.

B. Factual Background

[8] The factual background to this costs decision is as follows.

[9] In 2020, Sung Taek Lee commenced a proposed class action against Allstate Insurance Company of Canada. He alleged, among other things, that Allstate breached provincial employment standards statutes when calculating holiday and vacation pay by failing to include bonus payments in the calculation for many classifications of its employees. He claimed general damages of $80 million.

[10] To understand what happened to this proposed class action, it shall be important to keep in mind that there were two groups of Class Members comprised of Allstate’s employees.

a One group worked for an Allstate Insurance Agency (“AIA”) selling or supporting the sale of insurance. This group included Business Development Agents (“BDAs”) and their office management personnel, service, and support staff.

b The second group were the “non-AIA employees”; i.e., all other employees providing corporate leadership and support, including the higher-level executives, IT personnel and human resource officials.

[11] On March 31, 2021, Mr. Lee made a Rule 49 Settlement Offer to settle the certification motion on consent. The design of the Rule 49 Offer was that the class would be comprised of only the BDA subgroup of the first group of AIA employees. The overtime claims for this subgroup would also be withdrawn.

[12] The Rule 49 Offer was not accepted and the originally proposed class action with its much larger class size involving twelve classes of Allstate employees proceeded.

[13] On May 14, 2022, the certification motion came on for a hearing before Justice Belobaba. The hearing did not go well for Mr. Lee, and he requested, and Justice Belobaba granted a 60-day adjournment to allow Mr. Lee to reformulate the Class Members’ claim and the proposed class action, which appeared to be uncertifiable.

[14] Mr. Lee reformulated the claim. He replaced himself with Jody Delorme as the proposed representative plaintiff, and on August 30, 2022, Ms. Delorme returned with a reformulated claim. The claim was substantially narrowed. The revised class action: (a) excluded the overtime claim; (b) focussed only on the alleged non-payment of vacation and public holiday pay relating to two specific bonuses; and (c) limited the claim to Allstate employees in Ontario. These revisions reduced the class size and removed employees from eleven provinces and territories from class membership. The general damages claim was reduced to $11 million.

[15] Justice Belobaba released his decision on January 13, 2023. In his Reasons for Decision after describing the factual background, Justice Belobaba considered Ms. Delorme’s proposed twelve common issues (“PCIs”), and he certified three revised PCIs. In his Reasons for Decision, at paragraphs 13-26, he stated [footnotes deleted]:

13. For the reasons that follow, the only PCIs that can be certified are […] PCIs 1-3, but only as they relate to the BDAs. I will defer the damages issue PCI 4 to the trial judge. I am not prepared to certify PCIs 5-8 […] or PCIs 9-12 relating more broadly to public holiday pay.

14. My reasoning is based primarily on the commonality requirement and, in particular, the “some basis in fact” or “some evidence” prerequisite.

15. […] the law of commonality is well established. Under s. 5(1)(c) of the CPA, the plaintiff must show that his claim raises common issues that will advance the litigation. In order to satisfy the commonality requirement, the plaintiff only needs to adduce some evidence that the proposed common issue actually exists and some evidence that the proposed issue can be answered in common on a class-wide basis. Of course, an issue cannot be common if its resolution is dependent upon individual findings of fact that have to be made with respect to each individual claimant.

16. Here it is not enough for the plaintiff to baldly assert that the impugned bonuses are wages and then suggest that certification should automatically follow so that this “dispute” can be resolved. Class action machinery should not be engaged unless there is some actual evidence that, here for example, the […] bonuses were indeed wages in whole or in part — that they were not discretionary and that they related at least in part to an individual’s hours, production or efficiency.

17. The only evidence in the record that genuinely satisfies this “some evidence” requirement is found in the 2018 and 2019 offer letters to BDAs. […]

18. The certification of PCIs 1-3, strictly limited to BDAs, will advance the liability determinations. Individual assessments may still be needed to decide individual BDA entitlements, if there are any, but the need for such individual assessments does not defeat the analysis. In this case, the nature and extent of the “individual production” factor in the determination of the BDA’s [bonus] award is information that will likely be found in the defendant’s data base.

19. […] Here, to repeat, PCIs 1-3 (as narrowed by the court) that ask about the [bonuses] paid out to the BDAs and the extent to which individual production is a relevant factor satisfy the commonality requirement.

20. However, I cannot draw the same conclusion with respect to the […] bonus plans available to the non-AIA employees. Here there is simply no evidence from any non-AIA employee or anywhere in the record that these bonus plans are not discretionary and relate even in part to hours worked, production or efficiency. It follows from this, that none of PCIs 5-8 can be certified.

21. Nor is there any acceptable evidentiary basis for PCIs 9-12 that ask about the nonpayment of public holiday pay generally. The evidence presented by the plaintiff on this point comes in part from Ms. Delorme, a former BDA and the proposed representative plaintiff, and in part from counsel’s calculations and submissions. The problem is this evidence is incoherent and confusing.

22. […] In short, the plaintiff’s submissions remain unclear and confusing. Plaintiff’s counsel may be able to “reexplain” his submissions and remove the confusion but at this point the “some evidence” requirement is not satisfied. PCIs 9-12 are not certified.

[16] Justice Belobaba concluded that the other four certification criteria were satisfied although the class definition had to be modified to remove certain class members. In this regard, he stated at paragraph 30 of his decision:

30. The suggested start date for the class period, at least for certification purposes, is reasonable and is approved. However, as I have already concluded, the only class that remains viable after the required “some evidence” analysis are the BDAs (“commissioned employees”) and only in relation to one particular bonus, the APB. The other three AIA categories and all eight of the non-AIA categories must be removed from the proposed class.

[17] As noted above, Justice Belobaba recommended that the parties resolve the matter of costs. They were unable to do so, and they began the process of making written costs submissions. Then alas, Justice Belobaba passed away.

[18] There was a case management conference and I directed that the parties restart their costs submissions.

[19] The Plaintiff’s Costs Outline disclosed that her costs for the certification motion on a partial indemnity basis were $474,671.74, all inclusive.

[20] Allstate’s Costs Outline disclosed that its costs for the certification motion on a partial indemnity basis were $351,159.82, all inclusive.

C. Submissions of the Parties

1. Plaintiff’s Submissions

[21] The Plaintiff submitted that:

a. She was the successful party in a novel class action that was in the public interest to advance.

b. The novelty in her proposed class action was the issue of whether bonuses are wages under the Ontario’s Employment Standards Act, 2000 while the previous employment law class actions have been for overtime, vacation pay, and the misclassification of the Class Members.

c. She should not be penalized for narrowing the class membership and withdrawing the overtime claims and just focussing on the claims of the Business Development Agents (“BDAs”).

d. In any event, there was no waste in advancing the ultimately abandoned claims because the same legal test applied to those claims as the claims that were advanced.

e. The court should not make a distributive costs award, reducing the plaintiff’s costs on account of the defendant’s success in downsizing the class or the common issues. Distributive costs awards are to be avoided particularly in class actions.

f. Awarding the Defendant something for its “victory” of divided success in the immediate case would have a chilling effect on other class actions because costs are an important part of the class proceedings regime to fund future disbursements and to offset future costs awards.

g. Defendants who attack certification on every issue hoping for full victory should not be rewarded when in the end their efforts result in ‘winning the battle but losing the war’. Costs are important to deter “full court press” defences on certification that are just designed to tire out the opponent and not win based on skill and merit.

2. Defendant’s Submissions

[22] The Defendant submitted that:

1. The Plaintiff’s $474,671.74 costs claim should be discounted by 33% on account of the costs wasted by the Plaintiff for the hearing of the certification motion that was adjourned. This would reduce the Plaintiff’s costs to $319,684.70, which should be further reduced by 50% on account of the very limited success at the second certification hearing and the numerous issues pursued for which Justice Belobaba found that there was no supporting evidence. The result of these discounts is a costs award for the Plaintiff of $159,842.35.
2. However, Allstate has a claim for the costs it wasted for the first hearing of the certification motion of $212,783.52, which overtops the Plaintiff’s claim for costs with the result that the Plaintiff owes the Defendant $52,941.17 for the certification hearing.

D. Discussion and Analysis

1. The Normative Principles that Guide the Court’s Discretion with Respect to Costs Awards

[23] I do not agree with the analysis of either party and in the exercise of my discretion with respect to costs, I conclude that each side should bear their own costs.

[24] Before explaining my analysis, I have two preliminary observations.

[25] First, the proposed class action does not qualify for any special treatment for novelty. Although some of the claims ultimately were abandoned, the case at bar was just a variation of the established genre of class actions that allege violations of the employment standards legislation. The primary purpose of Ms. Delorme’s action was not altruistic, but it was to be paid for vacation and holiday pay.

[26] Second, I shall not be making a distributive costs award in the immediate case, nor shall I be awarding costs to the Defendant to be offset against the costs awarded to the Plaintiff. I shall apply the normative principles that apply to the court’s discretion in awarding costs in a class action where there has been divided success.

[27] Turning to those normative principles, modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements. Reynolds v. Kingston (City) Police Services Board, 2007 ONCA 375; 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 2006 ONCA 35819; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Somers v. Fournier, 2002 ONCA 45001; Fong v. Chan, 1999 ONCA 2052.

[28] An important factor in awarding costs in class actions is the principle that the court should have regard to the underlying goals of the Class Proceedings Act, 1992; namely: (1) access to justice; (2) behaviour modification; and (3) judicial economy. Green v. Canadian Imperial Bank of Commerce, 2016 ONSC 3829; Brown v. Canada (Attorney General), 2013 ONCA 18 at para. 37; Smith v. Inco Ltd., 2012 ONSC 5094 at paras. 74-109; Ruffolo v. Sun Life Assurance Co. of Canada, 2009 ONCA 274, at para. 37; KRP Enterprises Inc. v. Haldimand (County), [2008] O.J. No. 3021 (S.C.J.); McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2007 ONSCDC 12709.

[29] With respect to access to justice, defendants, just as much as plaintiffs, are entitled to access to justice, and the court in exercising its discretion must be aware of the access to justice implications of its award to both plaintiffs and defendants. Das v. George Weston Limited, 2017 ONSC 5583 at para.43, var’d 2018 ONCA 1053.

[30] In Pearson v. Inco Ltd., 2009 ONCA 722, at para. 13, the Court of Appeal established the following principles for fixing costs on a certification motion: (1) Ontario, unlike other class proceedings jurisdictions such as British Columbia, has not sought to interfere with the normal rule that costs will ordinarily follow the event; (2) the costs must reflect what is fair and reasonable; (3) the costs should, if possible, reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance; (4) a motion for certification is a vital step in the proceeding and the parties expect to devote substantial resources to prosecuting and defending the motion; (5) the costs expectations of the parties can be determined by the amount of costs that an unsuccessful party could reasonably expect to pay; (6) the complexity of the issues; (7) whether the case raises an issue of public importance; and (8) a fundamental object of the Class Proceedings Act, 1992 is to provide enhanced access to justice.

[31] The court’s discretion in awarding costs arises under the authority of s. 131 of the Courts of Justice Act and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure. The traditional discretionary principles developed for costs awards are codified in rule 57.01(1), which states:

Factors in Discretion

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[32] The most general rule about costs, not to be departed from without good reason, is that costs at a partial indemnity scale follow the event, which is to say that normally costs are ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale. McCracken v. Canadian National Railway, 2012 ONSC 6838; Hague v. Liberty Mutual Insurance Co., 2005 ONSC 13782; Pike's Tent and Awning Ltd. v. Cormdale Genetics Inc. (1998), 27 C.P.C. (4th) 352 (Ont. Gen. Div.); Bell Canada v. Olympia & York Developments Ltd., 1994 ONCA 239.

[33] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant. Boucher v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579 at para. 24; Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 ONCA 9852 at para. 97; Zesta Engineering Ltd. v. Cloutier, 2002 ONCA 25577 at para. 4; McGee v. London Life Insurance Co., [2008] O.J. No. 5312 at paras. 5-8 (S.C.J.); Caputo v. Imperial Tobacco Ltd., 2005 ONSC 63806 at paras. 23-25; Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.).

[34] The overriding principle in awarding costs is reasonableness. Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52. The assessment of reasonableness is discretionary and very much dependent upon the circumstances of each case. In some cases, it may be reasonable for the successful party to make exhaustive efforts and to commit enormous legal resources, and in those cases, it might be said that the unsuccessful party could reasonably expect to pay those costs. In other cases, however, the successful party may have been well served by giving his or her lawyer instructions to make exhaustive efforts, but it might be disproportionate and unreasonable to expect the unsuccessful party to pay those costs, even if he or she would have expected or anticipated that his or her foe would have marshalled those legal resources. Das v. George Weston Limited, 2017 ONSC 5583 at para. 65, var’d 2018 ONCA 1053.

[35] In Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52, Justice Epstein stated that the overriding principle in awarding costs is reasonableness. She stated:

52. As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 ONCA 14579, 71 O.R. (3d) 291 (C.A.)], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said: "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."

[36] The court has the discretion to make “no order as to costs” where the success on the motion or appeal is divided or to reduce the amount of the costs awarded. Strype Barristers LLP v. Pavlovic, 2022 ONSC 1226; F. Nicholas Suarez-Amaya, “The Cost of Discretion: Making Sense of Costs Awards in Cases with Divided Success” [2020] Annual Review of Civil Litigation 639. Divided success may mean that the successful party was not as successful as his or her aspirations, i.e., less unilateral success, or it may mean that both parties won something, i.e., that there was bilateral success. 1637063 Ontario Inc. v. 2404099 Ontario Ltd., 2020 ONSC 741 No order as to costs or a reduced order as to costs may be appropriate in either case. Rule 57.01 (1) provides that in exercising its discretion to award costs, the court may consider, among other things: the amount claimed, the amount recovered, the apportionment of liability, the complexity of the proceeding; the importance of the issues; and the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding, and these factors may justify a court making no order as to costs or reducing the costs awarded. Alliance v. Gardiner Roberts, 2020 ONSC 1580; Angela Beauty Parlour Ltd. v. Multani, 2020 ONSC 1428; Singh v. Ace Marketing Ventures Inc., 2020 ONSC 995; Teplitsky v. Coulson LLP. v. 2169252 Ontario Inc., 2020 ONSC 557; Bell v. Cloudwifi, 2020 ONSC 550; Curtis v. The Bank of Nova Scotia, 2019 ONSC 7359; Bakshi v. Global Credit & Collection Inc., 2015 ONSC 6842; Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366.

[37] In exercising its discretion with respect to costs in class proceedings, the court may consider such factors as: (a) conduct or poor judgment that unduly prolonged the preparation or argument of the motion for certification; (b) failure to follow the schedule; (c) improper case-splitting; (d) delays in abandoning causes of action and issues that were ultimately dropped; (e) failing to communicate the revised list of common issues; and (f) refusing to acknowledge the significance of submissions and concessions. Good v. Toronto Police Services Board, 2016 ONCA 250, leave to appeal to the S.C.C. refused [2016] S.C.C.A. No. 255; Pollack v. Advanced Medical Optics, Inc., 2012 ONSC 1850; Lau v. Bayview Landmark Inc., [1999] O.J. No. 4385 at para. 4 (S.C.J.).

[38] Where a successful plaintiff substantially recasts his or her case for certification, the defendant’s liability for costs may be reduced to compensate the defendant for the prejudice it suffered in wasting time responding to a case that was improperly formulated at the certification motion. Good v. Toronto Police Services Board, 2016 ONCA 250, leave to appeal to the S.C.C. refused [2016] S.C.C.A. No. 255; Keatley Surveying Ltd. v. Teranet Inc., 2014 ONSC 3690.

[39] Accounting for divided success is different from a distributive costs award, which Ms. Delorme correctly notes are discouraged by the courts, particularly in class actions. OrthoArm Incorporated v. GAC International LLC, 2019 ONCA 705; Bennett v. Lenovo (Canada) Inc., 2017 ONSC 6839; Heyde v Theberge Developments Limited, 2017 ONSC 3462; Good v. Toronto (Police Services Board), 2016 ONCA 250, leave to appeal to the S.C.C. refused [2016] S.C.C.A. No. 255; Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33; Quinte v. Eastwood Mall, 2014 ONSC 1661; Pearson v. Inco Ltd. (2006), 2006 ONCA 7666 at para. 5 (C.A.); Lou v. Bayview Landmark Inc., [1999] O.J. NO. 4385; Pike’s Tent and Awning Ltd. v. Cormdale Genetics Inc., 1998 ONSC 14634; Skye v. Matthews, 1996 ONCA 1187; Oakville Storage and Forwarders Ltd v. Canadian National Railway (1991), 1991 ONCA 7060.

[40] A court has the jurisdiction to order that a litigant pay his or her opponent for costs thrown away. This type of order is often a feature when the court grants an order setting aside a default judgment. Rule 34.14(1) provides for an order for costs thrown away because of a party’s improper conduct on an examination, and costs thrown away may be ordered for other reasons such as when a trial or hearing is adjourned or must restart because of a mistrial. Costs thrown away may be awarded on a full indemnity basis, but their determination is an inexact intuitive exercise that requires the court to carefully review the party’s bill of costs to determine what portion is wasted or must be redone. Nelson v. Chadwick, 2019 ONSC 4544; Stadnyk v. Dreshaj, 2019 ONSC 1184; Micevic v. Johnson & Johnson, 2018 ONSC 1925; Graziano v. Ciccone, 2017 ONSC 362; Pittiglio v. Pittiglio, 2015 ONSC 3603.

2. Application of the Normative Principles

[41] Applying the normative principles that guide a court’s discretion in awarding costs, the appropriate award in the immediate case is that each party should bear their own costs.

[42] In my opinion, the Plaintiff’s claim for costs for the certification motion go far beyond the reasonable expectation of the unsuccessful party, as in the immediate case, the Defendant was a very successful unsuccessful party. In other words, apart from everything else, the Plaintiff’s claim for costs is excessive and should be reduced substantially.

[43] But there is more in the immediate case to consider. Taking into account the class size claimed, the class size defined by Justice Belobaba; the importance of the issues decided for or against the Plaintiff; and the conduct of the Plaintiff that lengthened unnecessarily the duration of the proceeding, the Plaintiff’s ill-conceived first attempt at certifying which led to an adjournment to resuscitate a case on life support, these factors justify a court making no order as to costs.

[44] The Defendant was successful at the first certification hearing and right to oppose certification, and success was divided at the second hearing. The Defendant successfully opposed eight of the twelve proposed common issues. It successfully narrowed the class definition from what was originally all employees, nationwide, to only BDAs in Ontario, thereby removing eleven of the twelve employee categories from the proposed class definition. It successfully reduced its exposure to liability.

[45] There is no merit in the Plaintiff’s argument to the effect that where a representative plaintiff is successful in achieving certification, he or she should always receive costs so as to advance access to justice and to discourage Defendants making a “full court press” defence and challenging all of the certification criteria.

[46] Defendants are entitled to defend cases that expose them to multimillion dollar claims as they may be advised, be it a man to man defence, a zone defence (of which there are several variations), or the best defence is a good offence, and the court has ample jurisdiction and discretion to make the appropriate costs award having regard to the outcome of the contest.

[47] The court also has ample jurisdiction and discretion to encourage plaintiffs not to overplead their proposed class action with too much offence in anticipation that they have nothing to lose.

[48] The appropriate order in the immediate case for the certification motion is no order as to costs.

E. Conclusion

[49] For the above reasons, there shall be no Order as to costs.

Perell, J. Released: July 20, 2023