COURT FILE NO.: CV-20-00645736-00CP DATE: 20240809

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN : ANN DAVIDSON, Plaintiff AND: T.E.S. CONTRACT SERVICES INC., Defendant

BEFORE: Justice Glustein

COUNSEL: Andrew Monkhouse, Alexandra Monkhouse and Emily Kim, for the plaintiff Jeffrey E. Goodman, Stephanie M. Ramsay and Prateek Awasthi, for the defendant

HEARD: In-writing

COSTS REASONS

OVERVIEW

[1] By reasons dated June 3, 2024 (2024 ONSC 3066) (the “Certification Reasons”), I dismissed Davidson’s motion for certification. [1] At para. 200, I ordered that the parties provide written costs submissions if they could not agree on costs.

[2] By reasons dated February 20, 2024 (2024 ONSC 1044) (the “Production Reasons”), I granted Davidson’s production motion and ordered production of the Application. [2] At para. 33, on consent of the parties, I reserved costs of the production motion to the return of the certification motion.

[3] The parties were unable to agree on costs. I have reviewed the written costs submissions of the parties.

[4] TES seeks costs for the motions in the amount of $486,888.46 on a substantial indemnity scale or, in the alternative, $389,510.77 on a partial indemnity scale. [3]

[5] Davidson submits that an order of no costs is appropriate or in the alternative, costs be awarded to Davidson in an amount “no more than” $100,000, inclusive of taxes and disbursements.

[6] I fix costs on a partial indemnity scale because I do not find that Davidson’s conduct was egregious and as such does not warrant costs on a substantial indemnity basis.

[7] I find that the partial indemnity costs of $389,510.77 that TES sought are reasonable. I reject Davidson’s submission that the action is either a test case, raises a novel issue, or concerns a matter of public interest. Consequently, I make no deductions based on this submission.

[8] However, I deduct the partial indemnity fees TES sought for (i) the successful production motion brought by Davidson ($21,172.50 plus HST) and (ii) TES’ motion to strike the Davidson expert reports that TES did not pursue at the certification hearing ($21,380.10 plus HST).

[9] I also credit Davidson with her partial indemnity fees related to her production motion and response to TES’ motion to strike. Davidson sets out those costs collectively at $7,356 plus HST on a partial indemnity scale.

[10] Consequently, the total amount of deductions from the partial indemnity costs sought by TES is $56,396.72 (inclusive of disbursements and HST).

[11] As a result, I fix costs in favour of TES at $333,114.05.

APPLICABLE LAW

General principles

[12] The law on costs (both generally and for class actions) is settled. I rely on the following principles:

(i) Under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court has discretion to award costs and decide the amount of costs.

(ii) Under r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court may consider, in addition to the result of the proceeding and any offer of settlement, factors including (0.a) the principle of indemnity, (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay, (a) the amount claimed and the amount recovered, (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, and (f) whether any step in the proceeding was improper, vexatious or unnecessary.

(iii) On a certification motion, the general rule remains that costs at a partial indemnity scale follow the event: Das v. George Weston Limited, 2017 ONSC 5583 (Das SCJ), at para. 62, appeal partially allowed on costs at 2018 ONCA 1053, 43 E.T.R. (4th) 173 (Das CA), but not on this issue.

(iv) In Pearson v. Inco Ltd. (2006), 79 O.R. (3d) 427, at para. 13, the court set out the following principles on costs of certification motions:

(a) “Ontario, unlike other class proceedings jurisdictions such as British Columbia, has not sought to interfere with the normal rule that costs will ordinary follow the event.”

(b) “The costs must reflect what is fair and reasonable.”

(c) “The costs should, if possible, reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance.”

(d) “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.”

(e) “The costs expectations of the parties can be determined by the amount of costs that an unsuccessful party could reasonably expect to pay.”

(f) A court may consider “the complexity of the issues.”

(g) A court may consider whether “[t]he case raised an issue of public importance.”

(h) “A fundamental object of the CPA is to provide enhanced access to justice.”

(v) Courts can order costs on a substantial indemnity scale for a certification motion. However, the general principle remains that such costs can only be awarded “on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made”: Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40, or if the conduct of counsel is “excessive” and “run[s] up [costs] unnecessarily”: Navartnarajah v. FSB Group Ltd., 2023 ONSC 4024, at para. 13.

(vi) The “overriding principle” in awarding costs is reasonableness: Davies, at para. 52.

(vii) The assessment of reasonableness is discretionary and depends upon the circumstances of each case: Das (SCJ), at para. 65.

[13] These principles are undisputed by the parties, and it is common ground that Ontario does not have a “no costs” regime.

Public interest, novel issues, and test cases

[14] Davidson submits that a court can exercise its discretion to reduce costs (or order no costs) when a class action promotes access to justice, addresses a novel point of law, raises a matter of public interest, or constitutes a test case. I review this issue below.

[15] The court may consider these factors under s. 31(1) of the CPA. In Das CA, the court held that the motion judge addressed the correct principles when ordering costs in an opposed certification motion. However, the Court of Appeal reduced the costs award by 30 percent to reflect the public interest nature of the class action arising out of a fire which killed 1,130 workers in Bangladesh: at para. 273.

[16] Even if any of the s. 31(1) factors are established, the principle of indemnification of a successful party’s costs remains important in class actions. The mere existence of a factor does not necessarily negate a costs award. Doherty J.A. held, at paras. 236-39:

Section 31(1) identifies three factors that a judge may take into account in fixing costs in a class proceeding. Those factors should be given “significance” in the costs assessment process: see Pearson v. Inco Ltd. (2006), 267 D.L.R. (4th) 111 (Ont. C.A.), at para. 11; Ruffolo v. Sun Life Assurance Co. of Canada, 2009 ONCA 274, 95 O.R. (3d) 709, at paras. 27-29, 31, leave to appeal refused, [2009] S.C.C.A. No. 226.

In the context of a claim by a successful defendant for costs, the factors identified in s. 31(1) may mitigate the costs that the losing plaintiff might otherwise be required to pay. In some cases, the s. 31(1) factors may result in a “no costs” order: see e.g. Joanisse v. Barker (2003), 46 C.P.C. (5th) 348 (Ont. S.C.).

The factors identified in s. 31(1) do not, however, negate consideration of other factors which promote the interests served by awarding costs to successful defendants. These interests include discouraging inappropriate, meritless and expensive class litigation: see Re*Collections Inc. v. Toronto Dominion Bank, 2011 ONSC 3477, 20 C.P.C. (7th) 195, at para. 14 (citing Fischer v. IG Investment Management Ltd., 2010 ONSC 2839, 89 C.P.C. (6th) 263).

In applying the s. 31(1) factors, the court must have regard to the circumstances of the particular case and the purposes animating the CPA. Those purposes are: promoting access to justice, effecting behavioural modification, and making effective use of limited judicial resources: see Ruffolo, at para. 33. When considered alongside the other factors relevant to costs, most notably the outcome of the litigation, the s. 31(1) factors will often lead to some reduction in the costs awarded to a successful defendant. However, defendants who have successfully resisted a class proceeding claim should not routinely be required to shoulder the entire burden of their no doubt significant legal costs merely because the unsuccessful plaintiff’s claim raised a novel legal point or involved a matter of public interest.

[17] Doherty J.A. also explained that: “[a] legal issue can be viewed as novel for the purposes of s. 31(1) if it is central to the outcome of the litigation, it has not been decided in the factual context in which it is presented, and the decided cases and controlling principles do not provide a clear indication of how it will be determined in the fact situation presented”: Das CA, at para. 244.

[18] With respect to the public interest factor, the court in Das CA held, at para. 248:

The term “public interest” in s. 31(1) can refer to the public interest in facilitating access to justice through class proceedings by persons or groups who have historically faced significant disadvantages when seeking legal redress for alleged wrongs. Public interest can also refer to the subject matter of the claims. Claims that raise issues that transcend the immediate interests of the litigants and engage broad societal concerns of significant importance are matters of public interest […]

[19] Doherty J.A. upheld the motion judge’s decision that a novel issue of law was not raised, but found that there was a matter of public interest arising from the nature of the proposed class. Doherty J.A. concluded that significant costs were appropriate. He held, at para. 269:

The nature of the pleadings and the manner in which the appellants pursued their claims were, however, relevant to the costs assessment in one way. Given the nature of the appellants’ attack on the respondents, the appellants could reasonably expect that the respondents would spare no cost and leave no stone unturned in vigorously defending the claims. The appellants could reasonably expect that, should their approach fail, as it did, they would face substantial claims for costs from the respondents.

Financial implications of a costs award

[20] Davidson submits that either no costs or reduced costs should be ordered since “[employment law class actions] are not ‘proven money-makers’”. I do not agree.

[21] Ontario’s class action regime enables class counsel to seek significant costs upon a successful certification motion and contingency fees up to one-third of the award upon successful settlement or trial. Conversely, class counsel is aware of the risk of significant adverse costs if an action is not certified or is unsuccessful at trial. Therefore, it does not lie with class counsel to suggest that a “no costs” order is appropriate if certification is denied. Class counsel may protect themselves (and their clients) against such risk by seeking third-party funding or funding from the Class Proceedings Fund.

The concern about personally exposing a representative plaintiff to an adverse costs order

[22] Class counsel submits that the court should either not order costs, or alternatively, should significantly reduce any costs award, because “in this case there is no funding by the class proceeding fund or any other funder,” and therefore, “[t]he end payor will be presumably Ms. Davidson, Monkhouse Law, or some combination if costs are payable.” I reject this submission and find it troubling that class counsel suggests that the representative plaintiff could be personally exposed to costs.

[23] Class counsel made a similar submission in Navartnarajah and it was rejected by the court. Justice Morgan held, at paras. 15-18:

Finally, I feel compelled to comment on class counsel’s submission that, “The Defendant’s actions worked to eliminate the class action, but should not result in financial disaster for the Plaintiff.” In the first place, it was the actions of the putative class members in opting out en masse, and not anything done by the Defendants, that caused this class action to come to an abrupt halt.

More importantly, it would be very surprising to find that the Plaintiff had to personally bear any costs. In my original certification decision, at para 32, I found that the Plaintiff was adequate to the task of being a representative Plaintiff for a class action. It did not occur to me to investigate the details of his counsel’s retainer agreement to ensure that it contained the standard indemnity for costs, as that is so accepted as standard that it is not typically part of the inquiry into the appointment of class counsel: see MacBrayne v. LifeLabs Inc., 2020 ONSC 2674, at para 9.

On the rare occasion when courts have been alerted to this kind of gap in the retainer agreement, they have opined that an indemnification against an adverse costs award is expected of class counsel. Without an indemnity clause, class counsel may not be in a position to play that role at all: Azar v. Strada Crush Limited, 2019 ONSC 4436, at paras 17-18.

At the very least, a prospective representative plaintiff must be advised with respect to the potential for costs and the availability (or otherwise) of an indemnity agreement. If not, counsel has not fulfilled their duty to the client. In any case, whatever the situation is here, it is certain that the Defendants should not have to bear the price of alleviating the Plaintiff or his counsel of this burden.

[24] I share Justice Morgan’s concerns.

[25] It is improper for class counsel to suggest that the proposed representative plaintiff may be exposed to the significant cost consequences of an unsuccessful certification motion. The case law is replete with six and seven figure costs awards on unsuccessful certification motions. Such costs awards could not be supported by a representative plaintiff who brings a proposed class action on behalf of proposed class members. Typically, the class seeks damages that are significant at a class level, but dramatically smaller at an individual level.

[26] If class counsel cannot obtain funding and is not prepared to indemnify a representative plaintiff in the retainer, I question whether counsel can be permitted to act as class counsel. This issue should not be raised after the fact, when certification has already been denied. The issue of a representative plaintiff’s costs exposure must be addressed at the outset to protect the interests of the client. As Justice Morgan suggests in Navartnarajah, if it is necessary for the courts to ensure at the outset that class counsel is not exposing a proposed representative plaintiff to a costs award, then the court may be required to make that inquiry: at paras. 16-17.

ANALYSIS

[27] Davidson made four submissions in response to TES’ costs submissions:

(i) No costs should be ordered (or alternatively, costs should be reduced) because the class action was either a test case, raised a matter of public interest, or was based on a novel legal issue.

(ii) If costs are awarded, they should be on a partial indemnity rather than a substantial indemnity basis.

(iii) The quantum sought is excessive based on the relevant factors in this case and comparable case law.

(iv) Davidson is entitled to a set-off for costs incurred on the production motion and the motion to strike Davidson’s expert reports.

[28] I address each submission below.

Test case, public interest, or novel legal issue

[29] I reject the submission that the present certification motion either was a test case, raised a matter of public interest, or involved a novel legal issue.

[30] There is no evidence that Davidson brought this claim on behalf of any other group of workers, at any other THA, who agreed (or even considered) to be bound by a “test” case. The evidence only suggests that Davidson sought to represent a proposed class of TES workers.

[31] Although a proposed employment law class action may be relevant to others in similar circumstances (as reflected by the blog post on the website of TES after the Certification Reasons), this fact alone does not transform a certification motion for one group of workers into a test case.

[32] The present case does not raise a matter of public interest. Unlike the facts in Das CA, this case does not seek to “facilitate[e] access to justice through class proceedings by persons or groups who have historically faced significant disadvantages when seeking legal redress for alleged wrongs”. This case involves a private law matter that addresses rights for temporary workers under the ESA. There is no evidence that Davidson, or any other class member, faced historical disadvantages. She was an IT consultant who provided services to TI, and she presently seeks compensation that she is allegedly owed.

[33] The issues in this case do not “transcend the immediate interests of the litigants and engage broad societal concerns of significant importance.” Employment law issues under the ESA may affect workers who are similarly situated in other work environments; however, the present claims are based on payment entitlements and do not involve “broad societal concerns.” Whether a particular worker is subject to s. 74.3 of the ESA is not a matter of “public interest” within the meaning of s. 31(1).

[34] Davidson further submits that this matter raises a novel point of law because the courts have not considered the issue of whether s. 74.3 deems workers who are hired by a THA to be an employee. I do not agree.

[35] Davidson submitted at the certification hearing that the deeming provision in s.74.3 rendered it irrelevant as to whether she was an employee or independent contractor at common law or under s. 1(1) of the ESA. TES vehemently opposed this statutory interpretation argument.

[36] This statutory interpretation argument was not necessary to determine certification. The parties were required to consider and address the statutory interpretation issue only because Davidson took the position that she could establish a basis in fact for a finding of commonality that the proposed class members were assigned by TES. This precondition was the subject of the key Core Objection. TES submitted that there was no basis in fact for a finding of commonality that the proposed class members were assigned by TES.

[37] I agreed with TES on its Core Objection under s. 74.3. I held, at para. 15 of the Certification Reasons:

The issue of whether TES and each putative class member had an agreement under s. 74.3 “whether or not in writing, that the agency will assign or attempt to assign the person to perform work on a temporary basis for clients or potential clients of the agency” (a “s. 74.3 agreement”) must be determined on an individual basis because there was no basis in fact for the commonality of whether any that Davidson was “assigned” by TES.

[38] The inquiry into the commonality of assignment does not present a novel issue. It is a question of fact. Applying the same analysis as in Sondhi v. Deloitte, 2017 ONSC 2122, I dismissed certification in the present case without any need to address the statutory interpretation issue.

[39] As summarized at paras. 10-15 of the Certification Reasons, I accepted the Core Objections. The Core Objections rejected certification “based on those raised by Procom in Sondhi, i.e., that the plaintiff has not established a basis in fact under s. 5(1)(c) of the CPA for:

(i) the commonality of the proposed common issue (“PCI”) that TES was an employer under s. 74.3 (‘PCI 1’),

(ii) the commonality of the PCI that TES was an employer under s. 1(1) (‘PCI 2’), or

(iii) the commonality of the PCI that TES was an employer at common law (‘PCI 3’).”

[40] The Core Objections did not require any analysis of the statutory interpretation issue. TES raised these Core Objections at the outset of the certification process. It was Davidson who chose to move forward with all issues, despite notice of the Core Objections.

[41] These circumstances did not raise or require the determination of a novel legal issue. Further, the statutory interpretation issue was only raised because Davidson opposed the Core Objections, which were independently sufficient to dismiss the certification motion. Davidson chose to rely on a motion record which did not support any commonality; this issue was identified in the Core Objections. Accordingly, the court relied on the Core Objections and did not address the statutory interpretation issue.

[42] For these reasons, I reject the submission that a “no costs” order should be made (or costs should be reduced) because the class action was either a test case, raised a matter of public interest, or was based on a novel legal issue.

Scale of costs

[43] I agree with Davidson that costs on a partial indemnity scale are appropriate. I find no egregious or reprehensible conduct on the part of Davidson or her counsel.

[44] Davidson responded to the Core Objection on lack of commonality of assignment by relying upon the evidence described at para. 100 of the Certification Reasons. I rejected Davidson’s submissions that the evidence supported a basis in fact for commonality of assignment under s. 74.3.

[45] However, I do not accept TES’ submission that Davidson engaged in reprehensible conduct and should have acquiesced at the outset to TES’ submissions.

[46] Davidson’s submissions based on commonality under s 1(1) of the ESA and at common law were grounded in the same evidence and were not an “egregious”, “reprehensible,” or “ridiculous” position.

[47] Davidson was entitled to rely on the evidence before the court. The fact that a court does not accept a party’s position cannot transform the scale of costs. The court requires that the high threshold of egregious or reprehensible conduct is met before ordering substantial indemnity costs. This standard is not made out on the facts of the present case.

[48] Consequently, I fix costs on a partial indemnity scale.

Quantum of costs

[49] TES submitted a costs outline which reflects 1505.9 total hours for the certification motion, production motion, and motion to strike. Of this amount, 83.8 hours were dedicated to the motion to strike and 88.6 hours for the production motion, leaving a balance of 1,333.5 hours for the certification motion.

[50] TES seeks partial indemnity costs of $389,510.77 (taxes and disbursements included). Of this figure, $21,380.10 (before taxes) was allocated to costs for the motion to strike. Additionally, $21,172.50 (before taxes) was allocated to the production motion.

[51] Davidson submitted a costs outline which reflects 402.2 total hours for the certification motion, production motion, and motion to strike. A sum of 22.8 hours encompassed both the motions to strike and production motion. The remaining balance of 379.4 hours is allocated to the certification motion.

[52] Davidson submitted that her total partial indemnity costs were $133,719.54, with $7,356 allocated collectively to the motion to strike and production motions.

[53] Davidson submits that the quantum sought by TES is excessive. Davidson relies on several cases in which her same class counsel obtained significantly lower costs on successful certification motions. I do not find that those cases assist TES.

[54] In Curtis v. Medcan Health Management Inc., 2023 ONSC 552, class counsel sought $346,838,18 in partial indemnity costs, an amount similar to the amount clamed in the present proceeding. However, the court in Curtis only awarded $140,000 in costs (inclusive of taxes and disbursements) because it found the “1,121.2 hours of time preparing for and attending what was a one-day certification motion” to be “excessive in the extreme:” at paras. 18-19. Given the background of the present litigation discussed below, I do not find that the time spent by TES’ counsel was excessive.

[55] The certification motion in Curtis only required three motion records, three factums, and had two short cross-examinations. It was heard for a half-day, only 13 months after the plaintiffs issued their statement of claim.

[56] The present certification motion required nine factums, a three-day hearing, multiple expert opinions, and four days of cross-examinations. It was heard almost four years after the statement of claim was issued, with repeated court attendances, multiple additional research and drafting, and a complex legal issue upon which the court required further briefing. The time required for the Curtis matter is not comparable.

[57] In Morris v. Solar Brokers Canada Corp., 2024 ONSC 3727, class counsel acknowledges incurring $400,000 in legal fees in a matter with a contested certification motion which only raised limited issues addressed in brief reasons from Justice Morgan: 2019 ONSC 6817.

[58] Consequently, in previous cases involving the same class counsel, the fees incurred were similar to those TES claims in the present certification motion.

[59] Further, the Davidson costs outline appears to significantly understate the actual time spent by class counsel in relation to the certification motion. For example:

(i) The parties prepared lengthy and complex factums in 2023 after the direction of Justice Belobaba to provide evidence and submissions on the legislative context of Bill 139, because that information was not presented in prior factums. Those submissions were thorough and considered new expert evidence relied upon by the parties. Each party was required to provide a complete response to the statutory interpretation submissions based on that evidence. However, Davidson’s costs outline states that only 62 hours in total were required for these factums. Such a position is not consistent with the time necessary to complete the task. The standard of advocacy of all parties, as evidenced by the parties’ written materials, belies a claim that only 62 hours were necessary for those factums. Consequently, I accept TES’ time of 340 hours as consistent with the importance, detail, and quality of the additional factums.

(ii) Between three lawyers, Davidson only attributed 17 hours of time to prepare a 28-page Reply Factum in October 2021, and 35 hours to prepare the initial factum. In comparison, TES claims 142.7 hours for the initial factum, and 64.2 hours for its sur-reply factum, both of which are reasonable. Factums of the importance and quality before the court could not have reasonably been completed in the time period suggested in the Davidson costs outline.

[60] Of particular concern is the claim by Davidson in the costs outline that preparation for and attendance at the certification motion required 15 hours for one senior counsel, 10 hours for another senior counsel, and 10 hours for one junior counsel. Counsel for both parties were all present in court for the entire hearing. Even if class counsel omitted the time spent on brief lunch breaks or court recesses, all counsel spent more than 15 hours in court.

[61] The Davidson costs outline suggests that class counsel spent no time in May 2024 preparing for the certification hearing. It is inconceivable that experienced class counsel would not spend any time in May 2024 preparing for a three-day certification hearing, particularly on necessary tasks such as preparing oral submissions, reviewing the parties’ nine factums, multiple affidavits, cross-examination transcripts, and over 10,000 pages of materials on CaseLines.

[62] Class counsel attributes some time in April 2024 to preparing for the certification motion: ten hours for senior counsel, five hours for another senior counsel, and seven hours for one junior counsel. This time appears to be grossly understated because it is also attributed to the preparation of Davidson’s April 2024 factum.

[63] Davidson raises a concern of “overlawyering”, as 11 different lawyers worked on the file for TES. However, much of the work was done by lawyers at lower hourly rates than those charged by senior counsel for either TES or Davidson (both of whom had similar hourly rates).

[64] Additional lawyers were involved in the matter since TES changed law firms during the proceeding. However, TES has properly accounted for the necessity that other lawyers learn the file. TES is only seeking 53 percent of its actual costs as partial indemnity costs, rather the usual rate of 60 percent.

[65] As noted in Pearson, at para. 13, all parties on a certification motion should “expect to devote substantial resources to prosecuting and defending the motion” because certification is a “vital step in the proceeding.” The similar costs sought by the same class counsel (when successful on certification) are consistent with the costs sought by TES, particularly given the complexity of the legal issue and the voluminous material filed by the parties.

[66] Further, the claim against TES was significant. Davidson sought general damages of $72.5 million, and separate punitive, aggravated, and moral damages of the same amount. When faced with a certification motion that could result in a multi-million dollar claim, it is reasonable to expect that a defendant (and the plaintiff) will leave no stone unturned on the motion.

[67] For the above reasons, I accept TES’ costs as fair and reasonable, subject to the deductions for the production motion and motion to strike which I address below.

Set-off of costs

[68] I agree with Davidson that costs from the production motion and motion to strike should be set off against the total costs claimed by TES.

[69] TES seeks costs for all motions in the amount of $486,888.46 on a substantial indemnity scale (which I do not find appropriate) or, in the alternative, $389,510.77 on a partial indemnity scale. That amount is based on 53 percent of actual costs, given the change in law firms.

[70] While I find those costs to be reasonable (as I discuss above), the amount of costs includes the partial indemnity fees sought by TES for:

(i) Davidson’s successful production motion ($21,172.50 plus HST) and

(ii) TES’ motion to strike the Davidson expert reports that TES did not pursue at the certification hearing ($21,380.10 plus HST). [4]

[71] Davidson incurred an additional $6,696 in fees (exclusive of HST) to respond to the production motion (as set out in her costs outline). With respect to the motion to strike, Davidson submits in her costs outline that she incurred partial indemnity costs of $660 (exclusive of HST). [5]

[72] TES submits that the production motion “unnecessarily lengthened the proceeding” because it “ultimately resulted in evidence that was of no significance in [the certification decision]”. I do not agree.

[73] Davidson was successful on the production motion. TES refused production of the Application. The test on a production motion is whether the document sought could be relevant to an issue in the case. Costs are not determined on a hindsight basis after the court considers whether the document was relevant or important to the case. The court found that the Application was relevant and ordered production. Davidson is entitled to set-off her costs of that motion and TES is not entitled to its costs.

[74] TES submits that costs of the motion to strike should be included in its recoverable costs. I do not agree.

[75] TES brought a motion to strike out the expert evidence relied upon by Davidson, if the statutory interpretation issue was to be addressed by the court. At the hearing, however, TES advised the court that it was not pursuing the motion to strike but instead raised the alleged frailties of the impugned evidence as part of its argument on the statutory interpretation issue.

[76] The effect of TES’ position was that it was abandoning its motion. This was a separate motion which was not pursued at the hearing and TES’ costs in preparing for that motion should not be attributed to Davidson. Further, Davidson is entitled to set off her costs in responding to that motion (an additional $660 as set out in Davidson’s costs outline).

[77] Consequently, I deduct a total of $48,084.44 from TES’ costs (the amounts of $21,172.50 plus $21,380.10, both plus HST) related to the production motion and the motion to strike. The resulting amount of costs that would be owed to TES for its successful certification motion would thus total $341,426.33. [6]

[78] From that amount, I set off the amount of $8,312.28 (costs of Davidson of $6,696 plus $660, both plus HST) for her success on those motions. [7]

[79] Consequently, I fix partial indemnity costs payable by Davidson to TES for the certification motion (inclusive of the production motion and motion to strike which are subject to this costs order) in the amount of $333,114.05.

GLUSTEIN J. Date: 20240809

COURT FILE NO.: CV-20-00645736-00CP DATE: 20240809 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN : ANN DAVIDSON Plaintiff AND: T.E.S. CONTRACT SERVICES INC. Defendant COSTS REASONS Glustein J. Released: August 9, 2024

[1] All defined terms are as set out in the Certification Reasons.

[2] As defined at para. 1 of the Production Reasons.

[3] Both amounts are inclusive of taxes and disbursements.

[4] See para. 17(viii) and fn 2 of the Certification Reasons.

[5] Davidson did not set out a separate calculation of partial indemnity fees for the motion to strike, but she set out that her partial indemnity fees for the production motion were $6,696 (exclusive of HST) and her total partial indemnity fees for both the production motion and the motion to strike were $7,356 (exclusive of HST).

[6] Both of these amounts do not include disbursements. However, as the total disbursements for TES on the file are nominal ($1,121.75 on a partial indemnity scale based on actual total disbursements of $1,869.58, all inclusive of taxes), I make no further deduction for any nominal pro rata share of disbursements which might be attributable to the production motion or the motion to strike.

[7] Also, as Davidson’s disbursements are only $3,896.40 (inclusive of HST), with no breakdown provided for the production motion or motion to strike, I make no further adjustment to any amount which I would set off for Davidson’s costs on the motions.