COURT FILE NO.: CV-20-00648579-00CP

DATE: 20240815

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RUBEN STOLOVE by his litigation guardians Micha Stolove and Linda Hindrea, MICHA STOLOVE, LINDA HINDREA, MICHAEL BURTON ALEXANDER, BARRON JENNER, CHRISTOPHER DUCHARME, COLEBY BENJAMIN by his litigation guardian Kelly Draper and KELLY DRAPER

Plaintiffs

and -

WAYPOINT CENTRE FOR MENTAL HEALTH CARE, CAROL LAMBIE, ROB DESROCHES, LINDA ADAMS and HIS MAJESTY THE KING IN RIGHT OF ONTARIO

Defendants

Proceeding under the Class Proceedings Act, 1992

Joel P. Rochon, Golnaz Nayerahmadi, and Pritpal Mann for the Plaintiffs

Vanessa Glasser, Teresa-Anne Martin, Ram Rammaya, Michael Saad, Daniel Huffaker, and Maia Stevenson for His Majesty the King in Right of Ontario

Elizabeth Bowker, Jacinthe Boudreau, Deborah Berlach, Christian Breukelman, Dakota Forster, Paul Morrison and Kathryn M. Frelick for the Defendants Waypoint Centre for Mental Health Care, Carol Lambie, Rob Desroches, and Linda Adams

HEARD: In writing

PERELL, J.

REASONS FOR DECISION - COSTS

A. Introduction

[1] In this action under the Class Proceedings Act, 1992,[^1] which was commenced on July 17, 2020, the Plaintiffs Michael Burton Alexander, Coleby Benjamin, Christopher Ducharme, Barron Jenner, and Ruben Stolove are or were patients at Waypoint Centre for Mental Health Care formerly known as Mental Health Centre Penetanguishene. The Plaintiffs Kelly Draper, Linda Hindrea, and Micha Stolove were the proposed Representative Plaintiffs for the derivative claimants pursuant to s. 61 of the Family Law Act.[^2]

[2] The Plaintiffs sued His Majesty the King in Right of Ontario, i.e. the Province of Ontario, (“Ontario”) and Waypoint Centre for Mental Health Care (“Waypoint”) for the alleged systemically negligent way they operated or oversaw the operation of a maximum security psychiatric hospital in Penetanguishene that provided care for involuntary patients (“The Penetanguishene Psychiatric Hospital” or “The Hospital”).

[3] The Plaintiffs also sued Carol Lambie, Rob Desroches, and Linda Adams. Until her retirement in June 2022, Ms. Lambie was the President and CEO of The Penetanguishene Psychiatric Hospital. Mr. Desroches is Chief Operating Officer at The Hospital. Ms. Adams is a Waypoint Vice President and Chief Nursing Executive. Ms. Lambie, Mr. Desroches, and Ms. Adams were members of the Quality Committee at The Hospital.

[4] The Plaintiffs moved for certification, and I held that:

a. For the class period before December 15, 2008, the Plaintiffs satisfy the cause of action criterion as against Ontario for: (a) negligence; (b) breach of fiduciary duty; (c) breach of sections 7 and 9 of the Charter; and (d) vicarious liability.

b. For the class period after December 15, 2008, the Plaintiffs satisfy the cause of action criterion as against Waypoint for: (a) negligence; (b) breach of fiduciary duty; (c) breach of sections 7 and 9 of the Charter; and (d) vicarious liability.

c. The Plaintiffs do not satisfy the cause of action criterion as against Ms. Lambie, Mr. Desroches, and Ms. Adams, and the proposed class action should be dismissed as against them.

d. The Plaintiffs satisfied the class definition criterion. However, the class size was reduced from the estimated 22,616 patients at The Penetanguishene Psychiatric Hospital from 2000 to 2022 to the 3,636 patients in the High Secure Provincial Forensic Program.

e. The Plaintiffs do not satisfy the common issues criterion.

f. The Plaintiffs do not satisfy the preferable procedure criterion.

g. The Plaintiffs could have but do not satisfy the representative plaintiff criterion because of a deficient litigation plan.

[5] I held that some of putative class members have individual causes of action against Ontario or Waypoint; however, there are no meaningful common issues and a class proceeding is not the way, much less the preferable way, for the putative class members to access justice for any misdeeds by Ontario or Waypoint at The Penetanguishene Psychiatric Hospital.

[6] I dismissed the Certification Motion.[^3]

[7] The Waypoint Defendants, who were represented by co-Counsel, Stieber Berlach LLP and Miller Thomson LLP, request costs on a combined partial and substantial indemnity basis of $1,298,414.13, all inclusive.

[8] Ontario, which was represented by the Ministry of the Attorney General seeks partial indemnity costs of $815,346.65 all inclusive.

[9] The Plaintiffs submit that the Defendants’ reasonable fees for the certification motion is in the range of $330,000 to $650,000 (inclusive of HST), plus disbursements.

[10] For the reasons that follow, I award the Waypoint Defendants partial indemnity costs of $1,170,000, all inclusive, and I award Ontario partial indemnity costs of $735,000 all inclusive.

B. Legal Principles: Costs under the Class Proceedings Act, 1992

[11] Unlike some jurisdictions, under the Class Proceedings Act, 1992, in Ontario, costs may be awarded to a defendant that succeeds in resisting the certification of a proposed class action.

[12] 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.[^4]

[13] 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.[^5]

[14] 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.[^6]

[15] In Pearson v. Inco Ltd.,[^7] 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.

[16] The court’s discretion in awarding costs arises under the authority of s. 131 of the Courts of Justice Act[^8] and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure.[^9] 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;

(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.

[17] 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.[^10]

[18] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant.[^11] The overriding principle in awarding costs is reasonableness.[^12]

[19] 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.[^13]

[20] In Davies v. Clarington (Municipality)[^14] 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] 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."

[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.[^15] 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.[^16]

[22] 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.[^17]

[23] In Del Giudice v. Thompson,[^18] I set out a chart of 41 of my own cost awards, which ranged from $10,000 to $1,350,000. My average award was $334,000, with a median award of $215,000. The highest award was in Das v. George Weston Limited,[^19] 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.

[24] 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.

[25] Under s. 31 of the Class Proceedings Act, 1992, 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. Where a factor mentioned in s. 31(1) of the Act applies, failure to consider and accord significance to the factor is an error in law.[^20] The Class Proceedings Fund of the Law Foundation of Ontario’s decision to provide funding, and thereby indicate its position that the action involves a matter of public interest, is a relevant, if not dispositive, factor in the analysis of whether a proceeding is in the public interest.[^21]

[26] In applying the s. 31(1) factors, the court must have regard to the circumstances of the particular case and the purposes animating the Class Proceeding Act, 1992 of promoting access to justice, effecting behavioural modification, and making effective use of limited judicial resources.[^22] 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 by discounting the award or by ordering that there be no order as to costs.[^23] However, defendants should not routinely be required to shoulder the entire burden of their significant legal costs merely because the unsuccessful plaintiff’s claim raised a novel legal point or involved a matter of public interest.[^24]

[27] A legal issue can be viewed as novel for the purposes of s. 31(1) of the Class Proceedings Act, 1992 if: (a) it is central to the outcome of the litigation; (b) it has not been decided in the factual context in which it is presented; (c) the decided cases and controlling principles do not provide a clear indication of how it will be determined in the fact situation presented; and (d) it has some potential merit.[^25]

[28] The term “public interest” in s. 31(1) of the Class Proceedings Act, can refer to claims that raise issues that transcend the immediate interests of the litigants and engage broad societal concerns of significant importance, including 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.[^26]

C. Factual and Procedural Background

[29] The Plaintiffs’ action, which was commenced in 2020, was based on the alleged systemically negligent way that for a period beginning in 2000, the Defendants operated or oversaw the operation of the maximum security psychiatric hospital in Penetanguishene that provided care for involuntary patients (“The Penetanguishene Psychiatric Hospital” or “The Hospital”).

[30] On July 17, 2020, this action was commenced by Notice of Action. The lawyer of record and proposed Class Counsel is Rochon Genova LLP. Class Counsel has agreed to indemnify the Plaintiffs from their exposure to an adverse costs award. There is no support from the Class Proceedings Fund.

[31] On September 30, 2020, the Plaintiffs delivered their Statement of Claim.

[32] The Plaintiffs claimed: (a) general damages of $125 million; (b) damages under s. 24 (1) of the Charter in an amount to be determined by the court; (c) damages pursuant to s. 61 of the Family Law Act; (d) punitive damages of $75 million; and (e) pre-judgment and post-judgment interest, calculated in accordance with sections 128 and 129 of the Courts of Justice Act.[^27]

[33] On September 12, 2022, the Plaintiffs moved for certification.

[34] On November 29, 2022, the Plaintiffs delivered an Amended Statement of Claim.

[35] On December 7, 2022, Ontario and Waypoint respectively delivered Statements of Defence.

[36] Ontario’s lawyer of record is Crown Law Office – Civil, Ministry of the Attorney General.

[37] Waypoint’s, Ms. Lambie’s, Mr. Desroches’, and Ms. Adams’ lawyer of record are Stieber Berlach LLP and Miller Thomson LLP.

[38] It was at one time intended that the parties or some of them would bring summary judgment motions returnable with the Certification Motion, but ultimately only the Certification Motion was pursued and resisted.

[39] The Plaintiffs’ Certification Motion was supported by evidence from: (a) Michael Burton Alexander; (b) Dr. John Bradford; (c) Dr. Johann Brink; (d) Sarah Butterworth; (e) Richard DeJong; (f) Kelly Draper; (g) Christopher Paul Ducharme; (h) Dr. Julian Gojer; (i) Dr. Stuart Grassian; (j) Linda Hindrea; (k) Barron Jenner; (l) Dr. Janice L. LeBel; (m) Dr. Kevin Ann Huckshorn; (n) Jon Sloan; (o) Howard Sapers; (p) Gregory M. Smith; (q) Micha Stolove; and (r) Dr. Stephen N. Xenakis.

[40] Ontario responded to the Certification Motion with evidence from: (a) Dr. Gary Chaimowitz; (b) Dianna Cochrane; and (c) Dr. George Brian Jones.

[41] The Defendants Waypoint, Ms. Lambie, Mr. Desroches, and Ms. Adams responded to the Certification Motion with evidence from: (a) Ms. Adams; (b) Mr. Desroches; (c) Ms. Lambie; (d) Dr. Plabon Ismail; (e) Dr. Craig Hudson; (f) Dr. Achal Mishra; and (g) Dr. Mara Muraven.

[42] There were 22 days of cross-examinations.

[43] The motion records for the Certification Motion were voluminous. The Plaintiffs’ Certification Motion Record was 5,004 pages. Their Supplementary Motion Record was 156 pages. The Plaintiffs’ Reply Motion Record was 1,314 pages. Ontario’s Supplementary Motion Record was 951 pages. and its Further Supplementary Motion Record was 23 pages. Waypoint’s Motion Record was 1,189 pages. Its Sur-Reply Motion Record was 174 pages. The joint brief of the Defendants’ Answers to Undertakings was 537 pages. The joint transcript brief was 5,592 pages.

[44] The Certification Motion was argued on April 17, 18, and 19, 2024.

[45] For reasons that are set out in detail in the certification motion at paragraphs 36 to 67, which I will not repeat here, there was a great deal to criticize about some of the procedural steps, the evidence, and the argument submitted by both sides.

D. The Quantification of the Waypoint Defendants’ Costs Claim

[46] As noted above, the Waypoint Defendants request costs on a combined partial and substantial indemnity basis of $1,298,414.13, all inclusive. This claim can be broken down and explained as follows:

a. The counsel fee expense for legal expenses is $1,241,353.86 in legal fees (representing partial indemnity costs of $1,010,725.93, substantial indemnity costs post-November 17, 2023 of $87,817.31, and HST of $142,810.62.

b. $57,060.27 in disbursements (representing $55,759.83 in disbursements and taxes of $1,300.44).

c. The partial indemnity claim for legal fees is broken down as set out in the chart below, which I have taken from Waypoint’s original costs submissions.

	HOURS	RATE	VALUE
Deborah Berlach, 1984	431.70	$252	$108,788.40
Jacinthe Boudreau, 1989	843.10	$213	$179,580.30
Elizabeth Bowker, 2002	943.60	$189	$198,370.80
Christian Breukelman, 2017	540.90	$120	$64,908.00
Dakota Forster, 2020	383.20	$105	$40,236.00
Madeline Mackenzie, 2022	437.80	$105	$45,969.00
Stephanie De Sousa, 2022	32.30	$105	$3,391.50
Grace Murdoch, 2023	491.60	$90-$105	$48,510.00
Lujza Csanyi, 2023	19.10	$90	$2,005.50
Thomas Russell (Student)	148.10	$90	$13,329.00
Michael Valdez (Student)	28.10	$90	$2,529.00
Kayla Sager (Student)	23.00	$90	$2,070.00
Landan Peleikis (Student)	4.50	$90	$405.00
Kasia Kogut (Law Clerk)	486.60	$90	$43,794.00
Camile Hall (Law Clerk)	86.60	$90	$7,794.00
Meagan Bell (Law Clerk)	64.00	$90	$5,760.00
Belinda Wu (Law Clerk)	11.60	$90	$1,044.00
F. Paul Morrison, 1977	625.80	$330-$405	$231,564.90
Kathryn Frelick, 1998	999.40	$330-$405	$377,878.50
Karima Kanani, 2004	3.00	$126-	$1,152.00
Jenna D'Aurizio, 2023	167.50	$111-$186	$25,055.27
Jordan Allison, 2020	585.40	$126	$11,357.46
Michele Szynkaruk, 2021	0.70	$197	$137.97
Samantha Del Frate, 2022	16.0	$167	$2,678.40
Juanita Logan (Law Clerk)	37.10		$3,798.00
Janis Cheston (eDiscovery)	44.00	$115-$147	$6,346.50
Ceyda Tocsoy (eDiscovery)	6.90	$197-$252	$1,628.16
TOTALS	7,461.6		$1,430,081.66
[CLAIM]			[$1,241,353.86]

d. The substantial indemnity costs part of the combined partial and substantial indemnity claim is $87,817.31 + HST for the period after November 17, 2023, which is the date that the Waypoint Defendants delivered an Offer to Settle the action as against Ms. Lambie, Mr. Desroches, and Ms. Adams, which offer was not accepted.

e. The Waypoint Defendants are not claiming for the legal expense of Zarek, Taylor, Grossman, Hanrahan LLP who were their lawyers until December 3, 2021.

f. The Waypoint Defendants have not claimed approximately $400,000 in costs, all inclusive, that were related to a summary judgment motion that was adjourned and is now moot.

g. No claim is being made for the expense of preparing the Statement of Defence.

h. The Waypoint Defendants have reduced their fees by 50% ($127,052.00) for the period before the service of the certification motion record on September 12, 2022.

i. The Waypoint Defendants have reduced their counsel fees by 10% ($112,302.88) on account of possible redundancies in the work of co-counsel.

j. The Plaintiffs take no issue with the reasonableness of the hourly rates charged and there would be in any event no basis for any objection.

E. The Quantification of Ontario’s Costs Claim

[47] As noted above, Ontario request costs on a partial indemnity basis of $815,346.65, all inclusive. This claim can be broken down and explained as follows:

a. Ontario’s disbursements have not been computed into the global figure and the fee is inclusive of HST, if any.

b. Ontario’s undisclosed docketed time for legal services was valued at more than $1.0 million, but Ontario reduced its claim to $815,346.65, to reflect its partial indemnity claim, as set out in the chart below.

	HOURS	RATE	CLAIM
Ann Christian Brown, 2005	468.23	$410	$191,974.30
Daniel Huffaker, 2009	151.80	$370	$56,166.00
Maia Stevenson, 2001	212.40	$205	$43,542.00
Michael Saad, 2021	537.40	$205	$110,167.00
Ram Rammaya, 2021	339.90	$205	$69,679.50
Sidra Sabzwari, 2010	235.61	$360	$84,819.60
Teresa-Anne Martin, 2012	227.40	$340	$77,316.00
Vanessa Glasser, 2009	366.30	$370	$135,531.00
Priscilla Amoh (student)	235.70	$75	$17,677.50
Samuel Onigbinde (law clerk)	379.65	$75	$28,473.75
TOTALS	3,154.39		$815,346.65

c. Ontario (and Waypoint) brought an unsuccessful change of venue motion and has removed any costs from this motion from its Bill of Costs.

d. The Plaintiffs take no issue with the reasonableness of the hourly rates charged and there would be in any event no basis for any objection.

F. The Plaintiff’s Comparable Bill of Costs

[48] The Plaintiffs disclosed that Class Counsel expended 4,996.70 hours associated with the work of four lawyers, four students, and four law clerks. The value of this work, which included work associated with the Defendants’ ultimately adjourned and moot summary judgment motion, was $1,060,481.84 for which the HST would have been $137,862.64. The Plaintiffs also incurred $442,544.73 in disbursements (inclusive of HST), attributed largely to expert fees associated with certification and summary judgment issues. These figures suggest that had the Plaintiffs been the successful party, they would or could have submitted a partial indemnity bill of costs of approximately $1.6 million for the certification motion.

[49] For comparison purposes, it may be observed that Class Counsel dedicated approximately 5,000 hours of legal work for the class action and while Waypoint’s lawyers and Ontario’s lawyers expended at least approximately 7,500 and 3,200 hours respectively and submitted claims for costs of approximately $1.3 million and $0.8 million respectively.

G. Discussion and Analysis

[50] Waypoint and Ontario were the successful parties on the certification motion, and I find that their respective costs claimed are fair and reasonable and the costs would have been within the reasonable expectation of the Plaintiffs and Class Counsel when they commenced the action in 2020.

[51] Having regard to the principles that guide the court’s discretion with respect to costs of certification motions in class proceedings under Ontario’s Class Proceeding Act, 1992, a partial indemnity award of $1,298,414.13, all inclusive, to Waypoint and a partial indemnity award of $815,346.65, all inclusive, would have been appropriate awards. I, however, am reducing the award to Waypoint to $1,170,000, all inclusive, and the award to Ontario to $735,000, all inclusive, on account of s. 31 of the Class Proceedings Act, 1992.

[52] These awards are solely based on a partial indemnity scale. Having regard to the various and numerous legal expenses for legal services for which the Defendants make no charges or for which there were discounts, it is artificial and nonsensical to attribute any portion of the costs claimed to substantial indemnity costs. Quantifying costs is not an exercise of creative accounting.

[53] The awards I am making are fair and just costs awards regardless of whether Waypoint has a claim for substantial indemnity costs for the rejected Offer to Settle or regardless of whether the Defendants can attribute the Plaintiffs’ litigation conduct to: lengthening unnecessarily the duration of the proceeding; being improper, vexatious, or unnecessary; or as taken through negligence, mistake or excessive caution. I, therefore, decline to decide whether any portion of awards is also justifiable on the basis that there should be a punitive award or an award augmented by the Offer to Settle provisions or an award augmented to take into account litigation misconduct.

[54] Similarly, subject to the further reduction of around 10%, the original costs requests would take into account s. 31 of the Class Proceedings Act and the public interest elements of the Plaintiffs’ proposed class action and no further discounts are warranted.

[55] To be clear, I agree with Class Counsel’s submissions that this proposed class action would warrant a reduction of the Defendants’ costs on account of s. 31 of the Class Proceedings Act and the public interest in the prosecution and defence of this case. I am therefore reducing the Defendants’ costs claims on account of the obvious public interest and importance to the operation of forensic psychiatric hospitals in Ontario and the obvious public interest in the prosecution and defence of the proposed class action about what has being going on at the psychiatric hospital in Penetanguishene. However, Waypoint has already made over $600,000 in discounts and exclusions from its costs claim, and no further public interest discount is warranted beyond an additional approximate 10% reduction.

[56] There is no merit to the Plaintiffs’ submission that the amounts claimed are objectively unreasonable and far beyond the reasonable expectations of the Plaintiffs. There is no merit to the Plaintiffs’ submission that to make these awards would have a chilling effect on access to justice, not only in the context of class actions, but also other actions involving relatively modest damages sought on behalf of vulnerable individuals. There is no merit to the Plaintiffs’ submission that there was overspending, overstaffing, and over-lawyering by the Defendants. The Defendants did not commit more resources than necessary to fairly test and challenge the propriety of certifying the class proceeding. The Defendants did not allocate more work to senior lawyers than was necessary, and in this regard, I observe that in the immediate case while the Plaintiffs’ senior lawyers’ partial indemnity rate was $555/hour, the Waypoint’s and Ontario’s senior lawyers’ hourly rates were reasonably priced between $213/hour to $405/hour.

[57] As noted above, had the Plaintiffs been the successful party, they could have submitted a partial indemnity claim for approximately $1.6 million, all inclusive, which reveals that the Plaintiffs ought not to be surprised by costs claims of $1.3 million all inclusive, and $0.8 million, all inclusive.

[58] When Plaintiffs expend approximately $1.6 million in legal expenses advancing a factually and legally complex proposed class action, which claims damages in excess of $200 million as compensation, vindication, and deterrence, it should come as no surprise that the Defendants would vigorously defend themselves.

[59] When Plaintiffs advance a class action based on allegations of horrendous and vile government and professional misfeasance, irresponsibility, and negligence, and cruel, inhumane, treatment of the patients at a psychiatric hospital, including the allegation that on a class-wide basis, the Defendants violated internationally recognized ethical norms against torture and cruel, inhumane or degrading treatment or punishment, it should come as no surprise that the Defendants would defend themselves and seeks costs awards of approximately $1.3 million and $0.8 million respectively if their defence is successful.

[60] It should come as no surprise that Waypoint and Ontario would vigorously resist certification and attempt to defeat it with a summary judgment motion and to overmatch Class Counsel’s approximately 5,000 hours of legal work with approximately 10,000 hours of legal work of their own.

[61] There is no doubt that the proposed class action was factually and legally extraordinarily complex and correspondingly expensive to prosecute and defend. The action involved civil law, criminal law, constitutional law, class action law, and various statutes governing psychiatric hospitals and the use of restraints. The Plaintiffs advanced at least ten causes of action that had difficult permutations depending upon whether the defendant was Waypoint or Ontario. The factual underpinning of the medical treatment and standard of care of patients with complex mental illnesses who as individuals were enormously dangerous to themselves and to everyone they might encounter in the outside world and in the psychiatric settling of both the civil and criminal administration of justice raised factually complex issues. There is no doubt that Class Counsel brought a very ambitious and challenging systemic negligence claim with a lengthy class period and the superadded difficulties associated with the Defendants’ changing of the guard with respect to the ownership, operation, and responsibility for the operation of the psychiatric hospital. In addition to voluminous documentary evidence, for the Certification Motion, there was the evidence of 27 witnesses: six patients of The Hospital or their litigation guardians; four treating physicians; eight witnesses involved in the operation of The Hospital; and nine expert witnesses. Undoubtedly, the lawyers of both sides were required to review a massive amount of evidence that did not make its way into the evidentiary record.

[62] In regard to the evidentiary record and the complexity of the action, I do not see that the Plaintiffs’ inclusion of personal claims against Ms. Lambie, Mr. Desroches, and Ms. Adams and the Defendants’ advancement and then abandonment of the summary judgment motion is the reason that this certification motion was very complicated and expensive. Given the length of the class period, the change of ownership of The Hospital, and the legal complexity of the various and numerous claims and defences and the cascading problems associated with satisfying five certification criteria, this action was going to be expensive to litigate and the Plaintiffs and their very experienced and knowledgeable Class Counsel would have known it from the commencement of the action in 2020.

[63] Regardless of whether Ms. Lambie, Mr. Desroches, and Ms. Adams were formally joined as parties, they would have been heavily and personally involved in the action as witnesses and to give instructions to Waypoint’s lawyers and assistance to Ontario in defending the case. As it is, the Plaintiffs have been saved a great deal of legal expense because Ms. Lambie, Mr. Desroches, and Ms. Adams had a joint retainer with Waypoint’s counsel and did not retain lawyers of their own.

[64] Although unlike a summary judgment motion, a certification motion is not a merits motion, it was inevitable in the immediate case that both parties would advance a factually and legally complex motion and this is especially true in the immediate case because of what I found to be the Plaintiffs’ ill-advised efforts to demonstrate the factual merits of their allegations against the Defendants while objecting and attempting to curtail the Defendants’ efforts to defend themselves.

[65] I conclude the discussion of the reasonableness of the Defendants’ respective costs claims to say that comparisons of the Defendants’ claim for costs in the immediate case to other institutional abuse and systemic negligence cases are of little assistance.

[66] As the Court of Appeal in Pearson v. Inco Ltd.[^28] noted, if possible, costs should reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance.

[67] I agree. Apart from indicating that small, medium, and large costs awards have occurred in cases that arguably are closely comparable, other cases provide little assistance and making comparisons is often a pointless pursuit.

[68] A problem with making comparisons between costs awards in certification motions is that the ultimate result and focusing on the number of witnesses and the number of days of cross-examination and the number of days of a certification motion is not helpful when ultimately the analysis is about the particularities and idiosyncrasies and eccentricities of the parties, lawyers, judges, facts, and law of the immediate case.

[69] And in such matters as factual and legal complexity, there is no objective superlative measures for complex, more complex, and most complex. For example, in the immediate case, the Plaintiffs relied on Cavanaugh v. Grenville Christian College,[^29] as a comparable. In Cavanaugh, a systemic negligence class action for $200 million was brought on behalf of students alleging physical and sexual assault at a residential school, and the two successful defendants were awarded partial indemnity costs of approximately $400,000 in the aggregate for a proposed class period of 24 years. The certification motion was heard over two days and the record included affidavits from 17 individuals, all of whom were cross-examined.

[70] I was the certification motions judge from Cavanagh, and I can confidently say that hearing evidence from former children and teenagers about their harsh treatment at a religious boarding school bears no resemblance to hearing evidence about what goes on at a psychiatric hospital that provides care for seriously mentally ill, extraordinarily dangerous patients with histories of committing horrendously violent crimes who have been involuntarily admitted to a psychiatric facility. And I can safely say that Cavanaugh is a useless comparable with respect to the complexity of the factual and legal issues of the immediate case.

[71] For example, in the immediate case, all the parties played the mugs game of comparing the costs requests in the immediate case to the costs award I made in Banman v. Ontario,[^30] and while there are comparables in the cases, all I can say is that I attempted to exercise my discretion appropriately in both cases in accordance with the exigencies of the particular case, and I see no point in deciding whether Banman was more or less factually or legally complex than the immediate case. I see no point in adjusting my costs awards in the immediate case because of any of the argued and arguable comparables.

H. Conclusion

[72] For the above reasons, I award Waypoint partial indemnity costs of $1,170,000, all inclusive, and I award Ontario partial indemnity costs of $735,000 all inclusive.

Perell, J.

Released: August 15, 2024

COURT FILE NO.: CV-20-00648579-00CP

DATE: 20240815

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RUBEN STOLOVE by his litigation guardians Micha Stolove and Linda Hindrea MICHAEL BURTON ALEXANDER, BARRON JENNER, CHRISTOPHER DUCHARME, COLEBY BENJAMIN by his litigation guardian Kelly Draper and KELLY DRAPER

Plaintiffs

-and-

WAYPOINT CENTRE FOR MENTAL HEALTH CARE, CAROL LAMBIE, ROB DESROCHES, LINDA ADAMS and HIS MAJESTY THE KING IN RIGHT OF ONTARIO

Defendants

REASONS FOR DECISION – COSTS

PERELL J.

Released: August 15, 2024

Stolove v. Waypoint Centre for Mental Health Care, 2024 ONSC 4558

Case Summary

A. Introduction

B. Legal Principles: Costs under the Class Proceedings Act, 1992

C. Factual and Procedural Background

D. The Quantification of the Waypoint Defendants’ Costs Claim

E. The Quantification of Ontario’s Costs Claim

F. The Plaintiff’s Comparable Bill of Costs

G. Discussion and Analysis

H. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 5