Macaronies Hair Club and Laser Center Inc v. BofA Canada Bank, 2021 ABQB 954

Court of Queen’s Bench of Alberta Citation: Macaronies Hair Club and Laser Center Inc v.

BofA Canada Bank, 2021 ABQB 954 Date: 20211130 Docket: 1203 18531 Registry: Edmonton Between: Macaronies Hair Club and Laser Center Inc., Operating As Fuze Salon Plaintiff - and - BofA Canada Bank, Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Capital One Bank (Canada Branch) Citigroup Inc., Federation Des Caisses Desjardins Du Quebec, MasterCard International Incorporated, National Bank of Canada Inc., Royal Bank of Canada, Toronto-Dominion Bank and Visa Canada Corporation Defendants _______________________________________________________ Reasons for Judgment on Costs of the Associate Chief Justice J.D.

Rooke _______________________________________________________ Introduction

[ 1 ] On February 9, 2021, I issued Reasons for Judgment in an application for costs brought by the Defendants, Mastercard International Incorporated (Mastercard) and Visa Canada Corporation (Visa), against Home Depot of Canada Inc. (Home Depot) and Wal-Mart Canada Corp. (Wal-Mart) ( Macaronies Hair Club et al v. BofA Canada Bank , 2021 ABQB 106 (Mastercard/Visa Costs Judgment). However, in those Reasons, I inadvertently failed to address the parallel application for costs brought by National Bank of Canada Inc. (National Bank) against Wal-Mart. I address the latter application in these Reasons. [ 2 ] National Bank seeks costs against Wal-Mart Canada Corp. on a scale of 5 times Column 5 of

Schedule C of the Alberta Rules of Court , following its application for the approval of a settlement agreement between the Plaintiff (and other class members, including Wal-Mart and Home Depot), and National Bank, Mastercard and Visa (the NBC Settlement). The Application for which these costs are sought is memorialized in two decisions of this Court: Macaronies Hair Club and Laser Center Inc v BofA Canada Bank , 2019 ABQB 181 (Macaronies 2019) and Macaronies Hair Club and Laser Center Inc. v BofA Canada Bank , 2018 ABQB 633 (Macaronies 2018).

In the alternative, National Bank seeks costs against Wal-Mart in amounts or on a scale the Court deems appropriate. Background [ 3 ] The background to this Application is set out in Macaronies 2018, Macaronies 2019, and the Mastercard/Visa Costs Judgment. Home Depot and Wal-Mart are members of the plaintiff class in the underlying proceeding. Both Wal-Mart and Home Depot objected to the approval of the NBC settlement in respect of the Defendants Mastercard and Visa. Wal-Mart objected to the approval of the NBC settlement in respect of National Bank, but Home Depot did not.

On August 30, 2018, I approved the NBC Settlement (Macaronies 2018) with detailed reasons to follow (Macaronies 2019). By the time of those later detailed reasons, the NBC Settlement had been approved not only by Courts in British Columbia and Alberta, but also in Ontario ( Bancroft-Snell v Visa Canada Corporation , 2018 ONSC 5166 ), Saskatchewan ( Hello Baby Equipment Inc. v BofA Canada Bank , 2018 SKQB 276 ), and Quebec ( 9085-4886 Quebec Inc. v Visa Canada Corporation , 2018 QCCS 4872 ).

In those jurisdictions, the NBC Settlement was approved over the same objections raised by Wal-Mart as were raised before me. As I noted in the Mastercard/Visa Costs Judgment, Wal-Mart and Home Depot have made 12 unsuccessful attempts across Canada opposing the NBC Settlement. Legislation [ 4 ]

Section 37 of the Class Proceedings Act , SA 2003, c C-16.5 speaks to applications for costs in class proceedings, and provides: 37. With respect to any proceeding or other matter under this Act, the Court may award costs as provided for under the Rules of Court. [ 5 ] Rules 10.29 and 10.32 of the Alberta Rules of Court provide: 10.29(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action, subject to

a) the Court’s general discretion under rule 10.31,

b) the assessment officer’s discretion under rule 10.41,

c) particular rules governing who is to pay costs in particular circumstances,

d) an enactment governing who is to pay costs in particular circumstances, and

e) subrule (2). ... 10.32 In a proceeding under the Class Proceedings Act or in a representative action, the Court, in determining whether a costs award should be made against the unsuccessful representative party, may take into account one or more of the following factors, in addition to any other factors the Court considers appropriate:

a) the public interest;

b) whether the action involved a novel point of law;

c) whether the proceeding or action was a test case;

d) access to justice considerations. Analysis [ 6 ] Wal-Mart argues that costs should not be awarded against it because the settlement approval was a required proceeding under s.35 of the CPA; there has been inordinate delay in bringing this Application; and the issues raised were in the public interest, novel, and implicate access to justice.

[ 7 ] For the reasons set out in the Mastercard/Visa Costs Judgment, I am satisfied that National Bank is entitled to costs assessed on the basis of a multiplier of 3 times Column 5 of

Schedule C. To summarize and reiterate my Reasons in that earlier decision, while it is accurate to say that the approval hearing was mandated by s.35 of the CPA, I am not satisfied that it falls outside of the general principle that a successful party is entitled to costs.

With respect to delay, the timing of this Application must be considered in the broader context of the multijurisdictional proceedings: any contrary decision issuing out of the Courts of Ontario, Quebec or Saskatchewan would have had a significant impact on the litigation that might reasonably have been taken into account in National Bank’s application for costs, and so it was reasonable for National Bank to wait to see how those proceedings – and appeals – developed before bringing this application.

For the reasons set out in the Mastercard/Visa Costs Judgment, at para. 15, I am not satisfied that the issues raised in the approval hearing were so novel as to take this matter outside of the general proposition that the successful party is entitled to costs. [ 8 ] As I noted in the Mastercard/Visa Costs Judgment, the approval application was not extraordinarily complex. However, the amount in dispute is significantly in excess of the threshold for Column 5: the value of the NBC Settlement is at least $45 million. As such, an award of costs in accordance with Column 5 of

Schedule C of the Alberta Rules of Court, with a multiplier of three, is appropriate, including the costs of this application. Conclusion [ 9 ] In the result, I award a multiplier of 3 times Column 5 of

Schedule C for all steps, including this cost application. National Bank can perfect its cost

schedule along with an Order that reflects these Reasons, and present it for approval as to form, to Wal-Mart, and then to me for execution. Dated at the City of Calgary, Alberta this 30 th day of November, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Reidar Mogerman Jen Winstanley Chelsea Hermanson for the Plaintiff Robert Kwinter Jeffrey Simpson James Musgrove Sean Griffin Antoine Brylowski Danielle Royal for the Defendants