COURT FILE NO.: CV-21-00671048-00CP
DATE: 20231220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARTHA BANMAN, RUTH ATKIN by her estate representative ELLEN ATKIN, LOUISE BARK and ELLEN ATKIN
Plaintiffs
- and -
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, ATTORNEY GENERAL OF ONTARIO, DONALD ANGUS GALBRAITH, and SAM SWAMINATH (formerly RANGASMUDRAM SUBRAMANYAM SWAMINATH)
Defendants
Proceeding under the Class Proceedings Act, 1992
Joel P. Rochon, Golnaz Nayerahmadi, Matthew W. Taylor, and Sarah J. Fiddes for the Plaintiffs
Sonal Gandhi, Lisa Brost, and Taskeen Ahluwalia for the Crown Defendants
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
A. Introduction
[1] Pursuant to the Class Proceedings Act, 1992,[^1] this is a costs decision following a certification motion.
[2] The Plaintiffs seek costs on a partial indemnity basis of $713,798.85. This is comprised of: (a) $537,264.00 for fees, (b) $69,630.60 for HST on fees; (c) $94,701.25 for disbursements; and (d) $12,203 HST on disbursements.
[3] For the reasons that follow, I award $675,000, all inclusive.
B. Factual Background
[4] Pursuant to the Class Proceedings Act, 1992, Ruth Atkin, Martha Banman, and Louise Bark sue His Majesty the King in Ontario (the “Government of Ontario”) and its Attorney General. The three Plaintiffs also sued two psychiatrists, Dr. Donald Angus Galbraith and Dr. Sam Swaminath (the “Defendant Doctors”), but at the commencement of the hearing of the Certification Motion, the Plaintiffs moved for a discontinuance of the action as against the Defendant Doctors. I granted the discontinuance.[^2]
[5] The subject of the proposed class action is the psychiatric treatment of the class members when they were patients detained in the forensic psychiatric unit, which was known as the PST Unit (Psychosocial Treatment Unit), of the St. Thomas Psychiatric Hospital. While in the PST Unit, it is alleged that between 1976 and 1992, all the patients underwent treatment pursuant to the Psychosocial Treatment Program, the “PST Program”.
[6] The Plaintiffs moved for certification of their action as a class proceeding. They argued that all of the criteria for certification were satisfied including the recently amended preferable procedure criterion. The Plaintiffs disputed the argument of the Government of Ontario that the joinder of co-plaintiffs approach, which was the procedure used in Barker v. Barker,[^3] is the preferable procedure in the immediate case.
[7] The Government of Ontario opposed certification. In addition to its arguments about a joinder procedure being preferable, it submitted that the Plaintiffs misapply the law of vicarious liability in an attempt to hold the government liable for wrongdoings perpetrated by the patients, and that the vicarious liability cause of action cannot be certified. The Government of Ontario submitted that the Plaintiffs’ pleaded causes of action under s. 9 and under s. 28 of the Charter do not demonstrate a reasonable cause of action. The Government of Ontario asserted that the conflict between putative class members about patient-on-patient assaults and sexual assaults makes the class definition criterion unsatisfiable. The Government of Ontario submitted that there are insurmountable conflicts of interest amongst the patients and that this is another reason that the proposed class action cannot be certified. The Government of Ontario adopted the Defendant Doctors’ argument that, in any event, all of the Plaintiffs’ causes of action are statute-barred. The Government of Ontario submitted that the class definition was overbroad and over-extended. The Government of Ontario submitted that the common issues criterion was not satisfied. It submitted that the Plaintiffs’ proposed common issues were unfair and did not satisfy the common issues criterion beyond questions about the MAP Program at the St. Thomas Psychiatric Hospital. The Government of Ontario submitted that the proposed common issues under sections 7, 12, and 15 of the Charter cannot be certified for want of commonality. It submitted that the proposed common issues are so diffuse, vague, generalized, and disconnected from the evidence that the Government is unfairly left powerless to mount a defence. It submitted that the Plaintiffs’ proposed common issues will not and cannot meaningfully advance the proposed class action. The Government of Ontario submitted that the Plaintiffs’ proposed class action does not satisfy the preferable procedure criterion because the individual issues predominate over the common issues and the co-plaintiff joinder approach of Barker v. Barker in an action by the patients who underwent the MAP Program would be preferable than the class action proposed by the three Plaintiffs. The Government of Ontario submits that the Plaintiffs’ proposed class proceeding is not the preferable procedure to determine the up to 429 idiosyncratic claims of the Class Members. The Government of Ontario submitted that the litigation plan is deficient, among other reasons, because of its failure to deal with the conflicts between putative Class Members with respect to the sexual assault claims.
[8] The overarching submission of the Government of Ontario was that the Plaintiffs’ action was not certifiable and while a repleaded action focussing just on the MAP Program might be certifiable, the currently proposed class action would not be the preferable procedure for resolving the patients’ claims. The Government of Ontario submitted that Justice Morgan’s decision in Barker v. Barker demonstrates that the matters at issue can be effectively and appropriately determined through a multi-plaintiff proceeding that allows a court to consider the individual circumstances of plaintiffs and the varying viability of their claims.
[9] Thus, the Government of Ontario opposed all aspects of the Plaintiffs’ proposed class action. However, notwithstanding this opposition, on the eve of the Certification Motion, the Government of Ontario proposed the compromise of a class action that would have no Charter common issues and no damages common issues and that instead would focus only on the breach of fiduciary duty and negligence claims with respect to the MAP Program.
[10] I certified the class action with some qualifications.[^4] I dismissed the claim against the Attorney General who never was a proper party. I held that:
a. The Plaintiffs satisfy the cause of action criterion except for the claims of: (a) breach of s. 9 of the Charter (detention or imprisonment), which claim, incidentally, the Plaintiffs agreed to abandon if their other Charter causes of action were certified, which is the case; and (b) s. 28 of the Charter, which is not a cause of action but is rather subsumed by s. 15 of the Charter.
b. The Plaintiffs satisfied the class definition criterion.
c. Except for Questions Nos. 12-21 (Charter common issues), Question No. 22 (Causation), Question No. 23 (Charter Damages), Questions Nos. 24 and 25 (Aggregate Damages) and Question No. 26 (Punitive Damages), the Plaintiffs satisfy the common issues criterion.
d. The Plaintiffs satisfy the preferable procedure criterion but not for Questions Nos. 12-21 (Charter common issues), Question No. 22 (Causation); Question No. 23 (Charter Damages), Questions Nos. 24 and 25 (Aggregate Damages) and Question No. 26 (Punitive Damages).
e. The Plaintiffs satisfy the representative plaintiff criterion.
C. Legal Principles: Costs under the Class Proceedings Act, 1992
[11] 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.[^5]
[12] 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.[^6]
[13] 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.[^7]
[14] In Pearson v. Inco Ltd.,[^8] 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.
[15] The court’s discretion in awarding costs arises under the authority of s. 131 of the Courts of Justice Act[^9] and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure.[^10] 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.
[16] 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.[^11]
[17] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant.[^12] The overriding principle in awarding costs is reasonableness.[^13]
[18] 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.[^14]
[19] In Davies v. Clarington (Municipality)[^15] at para. 52, Justice Epstein stated that the overriding principle in awarding costs is reasonableness. She stated:
- 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 CanLII 14579 (ON CA), 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."
[20] The same approach is applied to the recovery of fees paid to an expert witness. In Pearson v. Inco Ltd.,[^16] at para. 20, Justice Nordheimer stated:
[T]he approach to the recovery of fees paid to expert witnesses ought to be exactly the same as the approach to the fees to be recovered by counsel. The court should consider what is fair in terms of hours and rates as well as the overall amount and should then fix an amount which it is reasonable for the losing party to pay. In so doing, the court is not bound by what the client may have actually had to pay the expert.
[21] Although the unsuccessful party is not obliged to disclose what he or she expended on costs, where the unsuccessful party submits that the costs claimed by the successful party are excessive, evidence of what he or she expended is relevant to the determination of what is reasonable and of what the unsuccessful party might reasonably have expected to pay and the failure to proffer this evidence tempers and diminishes the unsuccessful party’s criticism of the excessiveness of the costs claim.[^17] An attack on the quantum of the opponent’s claim for costs without disclosing one’s own bill of costs is no more than an attack in the air.[^18]
[22] 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.[^19] 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.[^20] 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.[^21]
[23] 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.[^22]
[24] In Del Guidice v. Thompson,[^23] I set out a chart of 41 cost awards, which ranged from $10,000 to $1,350,000. The average award was $334,000, with a median award of $215,000. The highest award was in Das v. George Weston Limited,[^24] which involved a $2 billion claim and motions that were argued over nine days, with 73 volumes of evidence and compendiums, and 21 witnesses who swore 34 affidavits, 22 of which were sworn by the expert witnesses.
[25] An important factor in awarding costs in class actions is s. 31 of the Class Proceedings Act, 1992, which provides that:
In exercising its discretion with respect to costs under subsection 131(1) of the Courts of Justice Act, the court may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest.
[26] Under s. 31 of the Act, in class proceedings, the approach to fixing costs is the same as in ordinary actions, but the court should give special weight to whether the class proceeding was a test case, raised a novel point of law, or involved a matter of public interest.[^25]
D. Discussion and Analysis
[27] The costs submissions of both parties were misguided and not particularly helpful.
[28] The Plaintiffs’ costs submissions were helpful in so far as they provided raw data about the work performed by Class Counsel and the hours expended and hourly rates etc., but Class Counsel’s submissions were in many respects more appropriate for a motion to approve Class Counsel’s contingency fees pursuant to the Class Proceedings Act, 1992.
[29] At this juncture of the class proceeding, the circumstance that Class Counsel took on a great risk in accepting a retainer from the Plaintiffs is not a helpful submission on an assessment of costs for the certification motion. Now is not the time to review the criterion for approving a contingency fee agreement and now is not the time to discuss the degree of ultimate success achieved for the Class Members. Now is the time to assess the costs for a successful certification motion in an action the ultimate merits of which remain to be determined.
[30] The issue before the court is how much should the Defendant, the Government of Ontario, pay for costs in a no-holds-barred contested certification motion. Those are the costs of the Plaintiffs. The Government of Ontario’s submissions about the value of the services to the putative Class Members is neither hear nor there. The putative Class Members will get notice of the certification of the action and if they do not opt out then they will become clients of Class Counsel. The three Plaintiffs were the moving parties for certification and they were successful. The three Plaintiffs are entitled to the costs of what is an extremely important interlocutory motion in what has become a class proceeding.
[31] The Government of Ontario’s submissions were unhelpful too and even further off the mark for a party and party costs assessment, which is not the same thing as a lawyer and client assessment in which the opposing party would have no standing and where there are different considerations in assessing costs.
[32] The Government of Ontario did identify some improper and some excessive disbursements, but the Plaintiffs withdrew the improper disbursements in a revised Bill of Costs.
[33] The Government of Ontario unhelpfully submitted that Class Counsel’s fees and disbursements were “entirely unreasonable” and that the fees should be reduced by “at least 50%” and that no disbursements should be paid. The Government of Ontario submitted that the fees should be payable “in the cause” because the resolution of the common issues would not be determinative of liability nor of damages, issues that ultimately will be determined in individual trials.
[34] The reasonableness of Class Counsel’s fees was not something that the Government of Ontario could or should say much about. As noted above, an attack on the quantum of the opponent’s claim for costs without disclosing one’s own bill of costs is no more than an attack in the air. In the immediate case, the Government of Ontario assembled a larger lawyer team than did the Plaintiffs for the certification motion but did not disclose what it would have claimed for costs had it been the successful party. For my part, Class Counsel’s expenditure of costs was reasonable and commensurate with what was necessary to address the numerous arguments made by the Government of Ontario in resisting certification.
[35] The Government of Ontario’s submissions were misplaced and mistaken and may have misled Class Counsel into a discussion of “fees” for a contingency fee when the analysis should be about the “costs” for legal services that are recoverable in proceedings pursuant to the Rules of Civil Procedure, which is not the same thing as lawyer’s fees under contingency fee retainers.
[36] For present purposes, it is neither here nor there that this class action may end with individual issues trials and so the payoff for the Class Members will not be determined at the common issues trial. For present purposes, what was determined was that the Class Members have succeeded in moving the case to a common issues determination that may be followed by individual issues trials, a not uncommon feature of class actions. That there may be individual issues trials is not a reason to ignore that the Government of Ontario lost the major interlocutory motion in a class proceeding.
[37] What is most relevant in the immediate case is that the Plaintiffs were successful in certifying an intensely contested class action. The normal principles that apply to costs awards is what matters in the immediate case.
[38] The Government of Ontario’s submissions misapply those principles. The Plaintiffs were successful in certifying their action and that they did not achieve all of their ambitions in terms of their proposed common issues is typical of class proceedings and not a reason to diminish the success of the ambitions that were achieved.
[39] While in some cases, it may be appropriate to order costs or a portion of costs in the cause, this is not one of those cases. The Plaintiffs were successful and the normal rule for motions is that costs are payable forthwith to the successful party.
[40] As it happens, the certification motion was decided under revised certification criteria. But had the certification criterion not been revised, it would not have much changed the amount of forensic work and preparation for argument that the Plaintiffs’ case called for. I do not see that the elevated threshold for the preferable procedure criterion necessitated more time, effort, and expenditure by Class Counsel. The simple point is that the efforts made in the immediate case were reasonable and recoverable in accordance with the standards of a partial indemnity assessment.
[41] It is true that Class Counsel devoted significant research and legal work to the issue of the revised preferable procedure criterion and about predominance and superiority requirements. However, Class Counsel would have had to undertake a considerable effort to address the preferable procedure criterion in any event, having regard to the unavoidable situation that the immediate case confronted the precedent of Egglestone v. Barker,[^26] which was not certified under somewhat less rigorous certification criterion.
[42] What is relevant to the immediate case is that the Government of Ontario would have reasonably expected that Class Counsel would have to engage considerable forensic and legal efforts when confronted by the vigorous defence mounted by the Defendant Doctors and by the Ministry of the Attorney General. That the Government of Ontario challenged certification, however, does not mean that the Plaintiffs are entitled to a higher award of costs. The fundamental principle remains that costs must be reasonable in accordance with the exigencies of the particular case.
[43] It is inevitable that Class Counsel will make some decisions that run up costs and for which it could be said that the legal fees are excessive. In the immediate case, the obvious example is that the Attorney General should never have been sued. However, the Plaintiffs’ decision to join the doctors and then to discontinue the case as against them is an entirely different matter, and there is no merit to the Government of Ontario’s submission that this joinder and then discontinuance calls for a substantial deduction in the costs to be awarded.
[44] That the Plaintiffs had good reason to reject the eleventh hour pseudo-offer from the Government of Ontario about certifying a narrower class and narrower common issues is also not a reason to depart from the normative principles for fixing the costs to the successful party on a contested certification motion.
[45] I have reviewed the Plaintiffs’ Bill of Costs and applying the predominant principle that costs should be reasonable, I would award the Plaintiffs $675,000, all inclusive.
E. Conclusion
[46] Order accordingly.
Perell, J.
Released: December 20, 2023
COURT FILE NO.: CV-21-00671048-00CP
DATE: 20231220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARTHA BANMAN, RUTH ATKIN by her estate representative ELLEN ATKIN, LOUISE BARK and ELLEN ATKIN
Plaintiffs
- and -
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, ATTORNEY GENERAL OF ONTARIO, DONALD ANGUS GALBRAITH, and SAM SWAMINATH (formerly RANGASMUDRAM SUBRAMANYAM SWAMINATH)
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: December 20, 2023
[^1]: S.O. 1992, c.6. [^2]: Banman v. Ontario, 2023 ONSC 5246. [^3]: Barker v. Barker, 2020 ONSC 3746 and 2021 ONSC 158, var’d 2022 ONCA 567. [^4]: Banman v. Ontario, 2023 ONSC 6187. [^5]: Reynolds v. Kingston (City) Police Services Board (2007), 2007 ONCA 375, 86 O.R. (3d) 43 (C.A.); 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 CanLII 35819 (ON CA), 82 O.R. (3d) 757 (C.A.); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Somers v. Fournier (2002), 2002 CanLII 45001 (ON CA), 60 O.R. (3d) 225 (C.A.); Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.). [^6]: 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 CanLII 12709 (ON SCDC), [2007] O.J. No. 1453 (Div. Ct.). [^7]: Das v. George Weston Limited, 2017 ONSC 5583 at para. 43, var’d 2018 ONCA 1053; Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 1036 at para. 18. [^8]: (2006), 2006 CanLII 7666 (ON CA), 79 O.R. (3d) 427 (C.A.). [^9]: R.S.O. 1990, c. C-43. [^10]: R.R.O. 1990, Reg. 194. [^11]: McCracken v. Canadian National Railway, 2012 ONSC 6838; Hague v. Liberty Mutual Insurance Co., 2005 CanLII 13782 (ON SC), [2005] O.J. No. 1660 (S.C.J.); 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), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.). [^12]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 at para. 24 (C.A.); Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 CanLII 9852 (ON CA), [2004] O.J. No. 2102 at para. 97 (C.A.); Zesta Engineering Ltd. v. Cloutier (2002), 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161 at para. 4 (Ont. C.A.); McGee v. London Life Insurance Co., [2008] O.J. No. 5312 at paras. 5-8 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 CanLII 63806 (ON SC), 74 O.R. (3d) 728 at paras. 23-25 (S.C.J.); Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.). [^13]: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 at para. 52 (C.A.). [^14]: Das v. George Weston Limited, 2017 ONSC 5583 at para. 65, var’d 2018 ONCA 1053. [^15]: (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.). [^16]: [2002] O.J. No. 3532 (S.C.J.). [^17]: Chapman v. Benefit Plan Administrators Ltd., 2014 ONSC 537 at paras. 11-12; MacDonald v. BMO Trust Co., 2012 ONSC 2654 at para. 27; Hague v. Liberty Mutual Insurance Co. (2005), 2005 CanLII 13782 (ON SC), 13 C.P.C. (6th) 37 at para. 15 (S.C.J.). [^18]: United States of America v. Yemec, 2007 CanLII 65619 (ON SCDC), [2007] O.J. No. 2066 (Div. Ct.) at para. 54; Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 CanLII 43566 (ON SC), 64 O.R. (3d) 135 at para. 10 (S.C.J.). [^19]: 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. [^20]: 1637063 Ontario Inc. v. 2404099 Ontario Ltd., 2020 ONSC 741. [^21]: 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. [^22]: 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.) [^23]: Del Giudice v. Thompson. [^24]: Das v. George Weston Limited, 2017 ONSC 5583. [^25]: Das v. George Weston Limited, 2017 ONSC 5583; Holley v. Northern Trust Company, 2014 ONSC 3057; Sutherland v. Hudson's Bay Co., [2008] O.J. No. 602 at para. 11 (S.C.J.); DeFazio v. Ontario (Ministry of Labour), [2007] O.J. No. 1975 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 CanLII 63806 (ON SC), 74 O.R. (3d) 728 at para. 32 (S.C.J.); Joanisse v. Barker, [2003] O.J. No. 4081 (S.C.J.); Fehringer v. Sun Media Corp., [2002] O.J. No. 5514 (S.C.J.); Garland v. Consumers' Gas Co. (1995), 1995 CanLII 7179 (ON SC), 22 O.R. (3d) 767 (Gen. Div.), aff’d (1996), 1996 CanLII 1022 (ON CA), 30 O.R. (3d) 414 (C.A.). [^26]: [2003] O.J. No. 3137 (S.C.J.), aff'd [2004] O.J. No. 5443 (Div. Ct.), leave to appeal to the Court of Appeal denied on May 18, 2005.