Court File and Parties

COURT FILE NO.: CV-15-53262500-CP DATE: 20240104 ONTARIO SUPERIOR COURT OF JUSTICE

Between: CHRISTOPHER BRAZEAU and DAVID KIFT Plaintiffs

• and - ATTORNEY GENERAL OF CANADA Defendant Proceeding under the Class Proceedings Act, 1992

And Between: COURT FILE NO.: CV-17-570771-00CP JULLIAN JORDEA REDDOCK Plaintiff

• and - ATTORNEY GENERAL OF CANADA Defendant Proceeding under the Class Proceeding Act, 1992

Counsel: James Sayce, Gerry Antman, and Karine Bédard for the Plaintiffs in Brazeau and Kift v. Attorney General of Canada H. Michael Rosenberg, Jacob Klugsberg, and Adam H. Kanji for the Plaintiff in Reddock v. Attorney General of Canada Negar Hashemi, Susan Gans, and Richard J. Campbell for the Defendant in: (a) Brazeau and Kift v. Attorney General of Canada; and (b) Reddock v. Attorney General of Canada

Reasons for Decision

PERELL, J.

[1] Pursuant to the Class Proceedings Act, 1992, I am case managing the Ontario class actions, Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General). These Ontario class actions are being administered concurrently with Gallone c. Canada (Attorney General), a similar action in Québec that is being case managed by Justice Chantal Masse of the Superior Court of Québec.

[2] For the last three years, Justice Masse and I have been engaged in the process of settling a Distribution and Individual Issues Protocol (“DIIP”). By the time of these Reasons for Decision, there will have been more than a dozen motions about the DIIP. Some of the motions were contested, and some were consent motions, but even the consent motions required a great deal of work by Class Counsel.

[3] Class Counsel in Brazeau and Reddock bring this motion to request that the Court award them partial indemnity costs of $1,143,500.56 for their legal work in settling the DIIP.

[4] Canada, however, submits that these costs should not be paid because Class Counsel have already been paid approximately $1.0 million for its DIIP legal work as part of the approximately $14.0 million in counsel fees that Class Counsel received after the successful summary judgment motions in Brazeau and Reddock respectively.

[5] I agree with Canada and therefore I dismiss the Plaintiffs’ motion for costs for Class Counsels’ work, still on-going, to settle and then revise the DIIP.

[6] It should be emphasized at the outset that I am not denying the Plaintiffs their costs for the DIIP. Rather, the dismissal of their motion to be paid costs recognizes that these costs have been prepaid, which is the typical way that costs for an individual issues protocol are paid.

[7] The fee approval motions in Brazeau v. Canada (Attorney General), 2019 ONSC 4721 and in Reddock v. Canada (Attorney General), 2019 ONSC 7090 confirm that Class Counsel has already been paid for its legal work to settle and revise the DIIP.

[8] In the affidavit filed in the counsel fee approval motion in Brazeau, the affiant included a list of work that Class Counsel anticipated doing following the approval motion including: “motions for an appropriate protocol for distribution of damages and the framework for individual claims.”

[9] In the affidavit for the Brazeau counsel fee approval motion, Class Counsel provided estimates for the future work and estimated approximately $400,000-$500,000 for post-judgment work before the commencement of the individual issues stage.

[10] In the affidavit filed in the counsel fee approval motion in Reddock, under the heading “Class counsel are obligated to perform uncompensated work after judgment”, the affiant stated:

Class Counsel are typically required to perform significant amounts of work following the approval of class counsel’s fees pursuant to a settlement agreement or a judgment in a class proceeding. The reason for this is that class counsel fees are often capped on the day they are approved.”

[11] In the affidavit for the Reddock counsel fee approval motion, Class Counsel provided estimates for the future work and estimated approximately $400,000-$500,000 for post-judgment work before the commencement of the individual issues stage.

[12] Moreover, in the Reddock fee approval motion, Class Counsel included a claim for work already completed on the DIIP.

[13] It follows from the circumstance that the costs for the DIIP have been prepaid that the Plaintiffs’ arguments in the immediate case to be paid costs are either moot or misdirected.

[14] For example, in the immediate case, Class Counsel for the Plaintiffs argues that they have been substantially successful in designing and amending the protocol and therefore, they are entitled to their costs under the normal rule that costs to the successful party follow the event. However, the DIIP was a necessary incident of the outcome of the summary judgment decisions on the common issues in the immediate case. Designing a distribution protocol or an individual issues protocol or a combination of them both (a DIIP) was a foregone conclusion pursuant to s. 25 of the Class Proceedings Act. Where there can be no failure, it is misleading to ascribe success.

[15] In the immediate case, it is a misdirection for either party to claim success for the DIIP. It is a misdirection for Class Counsel to boastfully claim that they are the victors of the dozen motions associated with the DIIP. And it is a misdirection for Canada to heap praise on itself for the inevitable accomplishment of designing a DIIP that must in any event be designed. It is a misdirection for Canada to dispute Class Counsel’s contribution or to disparage or diminish Class Counsel’s contribution in designing and then amending the DIIP.

[16] Both parties are to be commended for their contributions, but if self-praise has a place under s. 25 of the Class Proceedings Act, the “success” of the DIIP in the immediate case can also be claimed by Justice Masse and me. The point is that the normal success-failure guidelines for costs that focus just on the contributions and hindrances of the parties need to be realigned or adjusted when a distribution scheme or an individual issues protocol is settled. This follows because the court has a role in what is a creative activity of brainstorming to design a scheme for access to justice.

[17] In the immediate case, the original draft DIIPs submitted by the parties were substantially redrafted by Justice Masse and me in Parts 1 and 2 to shape a scheme that - it is to be hoped - is feasible for our respective courts and fair to other litigants who seek access to justice given scarce judicial resources. In the immediate case, there will be thousands of Track 2 claims and hundreds of Track 3 claims to be adjudicated. Justice Masse and I necessarily had a role to play in the creative process and we were not just deciding success or failure in approving the DIIP. In any event, settling a distribution scheme, an individual issues protocol, (and also a section 7 plan for a continuation of a non-certified action as one or more proceedings) is a collaborative effort by the parties and by the court, for which all should be praised without attributing success or blame.

[18] In the immediate case, there has been a prepayment of costs to Class Counsel. Prepayment at the time of the determination of class counsel’s fee for the anticipated work in settling the distribution scheme, the individual issues protocol or in this case the DIIP is both necessary and inappropriate and this prepayment is the means to satisfy the purposes of the Class Proceedings Act, 1992.

[19] This prepayment, however, does not prevent a court from awarding additional costs - if it is appropriate to do so. Modern costs awards have multiple purposes, including discouraging and sanctioning inappropriate behaviour by litigants in their conduct of the proceedings. However, in the immediate case, there is no reason to sanction inappropriate behaviour, and it is not appropriate to increase the costs already awarded to Class Counsel for its work in designing the DIIP.

[20] In this last regard, I appreciate that Class Counsel in claiming more costs than already paid is relying on something that I (and Justice Masse) said at the first of the dozen or so DIIP decisions. Brazeau v. Canada (Attorney General), 2020 ONSC 7229; Reddock v. Canada (Attorney General), 2020 ONSC 7232. The context of our comment was that in the DIIP draft that Justice Masse and I designed in response to the parties’ drafts, no costs were being awarded if a Class Member selects Track 1. At paragraph 163 of the joint judgment, we explained the reason for this exclusion as follows:

163. The Draft D&I Protocol specifies that if a Class Member selects Track 1, then Class Counsel or the lawyer retained to act for the Class Member cannot charge for his or services for the Class Member with respect to the Track 1 claim. This makes sense because Class Counsel, has already been paid for achieving the Aggregate Damages Award and once the Distribution Protocol is approved by the Court, Class Counsel will be paid in costs for its services in regard for settling the scheme of distribution. For Class Counsel or a new lawyer to receive a fee based just on the individual Class Member’s share of the Distribution Protocol is in a sense double billing the Class Member.

[21] I understand why counsel might rely on the future tense “will be paid” in the sentence “once the Distribution Protocol is approved by the Court, Class Counsel will be paid in costs for its services in regard for settling the scheme of distribution” to claim additional costs for their contribution to settling the DIIP; however, given that there was a prepayment of costs, Justice Masse and I more accurately should have used the perfect future tense “will have been paid” to explain why there should be no double dipping in costs.

[22] In the immediate case, Class Counsel have already been paid more than a million dollars for their work on the DIIP. No further payment is warranted at this time.

A. Conclusion

[23] For the above reasons, I dismiss the Plaintiffs’ motion for costs for the DIIP work to date.

Perell, J. January 4, 2024