An Ontario judge has handed down costs awards in a series of class action suits, including two that involve financial firms.
The province’s Superior Court of Justice has released several decisions from Justice Edward Belobaba involving costs awards in class action suits. In those decisions, Belobbab notes that over the past several months, he’s made five decisions certifying proceedings as class actions that now require costs awards. “Normally, costs awards are routine and can be easily adjudicated,” he notes. However, this is not the case when it comes to certification motions.
“Here, excess appears to be the norm in every aspect of the proceeding – in the amount of time spent by legal counsel, the volume of material filed with the court, the number of days scheduled for the oral hearing and the over-litigation of most issues,” he says. “No wonder, then, that the costs that are typically sought by the successful party are in the hundreds of thousands of dollars. No wonder, also, that the number of class actions on an annual basis is declining. Access to justice, even in the very area that was specifically designed to achieve this goal, is becoming too expensive.”
The decisions note that the provincial law commission is undertaking a review of class action legislation, and suggests that hopefully it will decide to do away with awarding cost on certification motions.
In the meantime, however, he is ordering costs in these recent cases — including an overtime suit brought on behalf of advisors against BMO Nesbitt Burns Inc. (Rosen v. BMO Nesbitt Burns Inc., 2013 ONSC 6356); and a suit against Manulife Financial Inc. claiming that the company, and several executives, misrepresented the adequacy of its risk management practices and failed to disclose the size of its exposure to equity market risk (Dugal v. Manulife Financial, 2013 ONSC 6354) — and spelling out his reasons for those awards. The cases themselves have not been heard, and the allegations have not been proven.
In the case against BMO, the decision notes that the plaintiff says this is the first misclassification action involving investment advisors that has been certified as a class proceeding. As a result, the certification motion was relatively complex, and the plaintiff sought $575,000 in costs. BMO argued that the costs award should not exceed $315,000.
Ultimately, Belobaba ruled that the costs should be set at $290,000 against BMO.
In the Manulife case, the decision states that the plaintiffs sought almost $1.2 million, comprised of $436,222 in legal fees and $746,135 in disbursements (mainly for expert reports). Manulife argued that the fees request should be cut in half to $218,111 and that the provision for disbursements should be reduced to $200,000 for a total of $418,111.
Belobaba set costs in the case at $467,234 all-inclusive – $225,000 in fees and $242,234 for disbursements, adding that a further $100,000 for disbursements will be payable to the plaintiffs in the cause.