Court File and Parties
COURT FILE NO.: CV-20-00639259-00CP DATE: 20240223 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NICOLE CURTIS, AMR GALAL and KATRINA BUHLMAN Plaintiffs
- and - MEDCAN HEALTH MANAGEMENT INC, ANDREW CARRAGHER, SHAUN C. FRANCIS, EDWIN F. HAWKEN, URBAN JOSEPH, BEAU LASKEY, THOMAS P. REEVES, OWEN ROGERS, CRAIG SHEPHERD Defendants
Proceedings under the Class Proceedings Act, 1992
Counsel: Andrew Monkhouse and Alexandra Monkhouse for the Plaintiffs Jeffrey E. Goodman, Stephanie M. Ramsay, and Elisha C. Jamieson-Davies for the Defendants
HEARD: In writing
PERELL, J.
Reasons for Decision - Costs
[1] In this employment genre class action under the Class Proceedings Act, 1992, the Plaintiffs brought a motion to settle the Discovery Plan. The Defendants brought a cross-motion to amend the certified common issues. The Defendants submitted an alternative Discovery Plan, that was based on their proposed revised common issues. I granted the Defendants’ motion. I dismissed the Plaintiffs’ motion. [2]
[2] The Defendants seek costs of $45,057.94, all inclusive, on a substantial indemnity scale. In the alternative, they seek costs of $29,930.58, all inclusive.
[3] The Plaintiffs submit that the costs should be in the cause, or in the alternative, they submit that the appropriate award of costs would be $14,000, all inclusive, on a partial indemnity basis.
[4] The Plaintiffs soundly lost the motion, but despite the Defendants’ submissions there was nothing outrageous or anything in their conduct that would warrant a punitive costs award.
[5] What the Plaintiffs sought by way of discovery plan was outrageous, abusive, and unfair; however, how they sought a discovery plan was not outrageous, abusive, and unfair.
[6] Class Counsel did not refuse to cooperate, but rather they were confronted by Defendants’ Counsel who would not capitulate to the Plaintiffs’ unreasonable and unnecessary design of a discovery plan that did not fit the procedural exigencies of this particular employment law class action.
[7] The parties were far apart. Parties are not compelled to agree or settle. When they don’t settle, then the court decides the matter, and the normal scale of costs is a partial indemnity for the successful party.
[8] The motion to settle the discovery plan was fundamentally important to the parties, and while the Plaintiffs lost the motion, they procedurally gained more than they lost, because the process of settling the discovery plan led to admissions that will possibly avoid an onerous and expensive common issues trial and that will expeditiously move the action to where it inevitably will end with individual issues trials.
[9] Procedurally, the Plaintiffs were off course in seeking to proceed without a discovery plan, but ironically the exercise of developing a discovery plan benefitted the Plaintiffs. They have no basis for objecting to being schooled at a partial indemnity level for the outcome of a motion they lost.
[10] I award the Defendants $29,930.58, all inclusive, on a partial indemnity basis. In the circumstances of a hard fought and very significant interlocutory step in this class action, this a reasonable award that should have been in the reasonable expectations of the unsuccessful party.
Perell, J. Released: February 23, 2024
Citations
[1] S.O. 1992, c. 6