2016 ONSC 394, 2016 ONSC 394

CITATION : Wright v. United Parcel Service Canada Ltd., 2016 ONSC 394 DIVISIONAL COURT FILE NO.: 415/11 DATE: 20160120 SUPERIOR COURT OF JUSTICE - ONTARIO RE: RYAN WRIGHT and JULIA ZISLIN, Plaintiffs AND: UNITED PARCEL SERVICE CANADA LTD., Defendant BEFORE: The Honourable H.J. Wilton-Siegel COUNSEL: John A. Campion and Antonio Di Domenico , for the Defendant/Applicant C. Scott Ritchie and Michael A.

Eizenga , for the Plaintiffs/Respondents HEARD: In Writing ENDORSEMENT [ 1 ] The respondents, Ryan Wright and Julia Zislin (the “respondents”), were successful on their motion to certify this action as a class proceeding under the Class Proceedings Act , 1992, S.O. 1992, c. 6.

The applicant, United Parcel Service Canada Ltd. (the “applicant”), sought leave to appeal the certification order. [ 2 ] The leave motion was bifurcated in order that leave to appeal one particular issue – the unsolicited goods issue – could be heard quickly for timing reasons associated with a companion appeal in this action in the Court of Appeal. The Court granted leave to appeal the unsolicited goods issue in its endorsement released as 2012 ONSC 3287 (the “Unsolicited Goods Endorsement”).

The Court subsequently denied leave to appeal the remaining issues in its endorsement released as 2014 ONSC 1008 (the “Remaining Issues Endorsement”). [ 3 ] The respondents seek their costs in respect of the issues addressed in the Remaining Issues Endorsement as the successful party in respect of that hearing. They seek $65,000 on a partial indemnity basis. [ 4 ] As a preliminary matter, the applicant opposed an award of costs at this time. In the Unsolicited Costs Endorsement, the Court reserved costs of that motion for the Divisional Court hearing the appeal.

In the Remaining Issues Endorsement, the Court allowed written costs submissions within thirty days if the parties could not agree on costs. The applicant argued that it brought only one motion and that only one costs award should be ordered. It submitted that case law provides that distributive costs awards – that is, cost awards on an issue-by-issue basis – should be awarded rarely, if at all. [ 5 ] During a case conference by telephone, the Court confirmed the order in the Remaining Costs Endorsement that costs would be awarded for such motion.

The Court made that determination for the following four principal reasons. [ 6 ] First, the issue addressed in the Unsolicited Goods Endorsement was essentially discrete and separate from all of the remaining issues. As such, it was feasible to allocate costs as between the two motions. Second, because the unsolicited goods issue engaged very different issues from the remaining issues, the Divisional Court, when hearing the appeal of the unsolicited goods issue, would not be in a position to make an informed costs award in respect of the costs associated with the determination of the remaining issues.

Third, as the respondents note, the award is being made on an attendance-by-attendance basis, rather than an issue-by-issue basis. Given the number of issues involved, even if the applicant’s appeal of the unsolicited goods issue were successful, it would be at least arguable that the respondents were substantially successful on the leave to appeal motion considered on a global basis. The Divisional Court would not be in a position to assess any such submission if it were made.

Similarly, to the extent the applicant seeks a deferral of the payment of costs pending the appeal of the unsolicited goods issue, such deferral would arguably be inappropriate given the respondent’s success on the remaining issues. Lastly, it is my understanding that the bifurcation of the leave motion was made to accommodate the applicant. Such flexibility on the part of litigants is to be encouraged.

Acceptance of the applicant’s position regarding the treatment of costs in such circumstances would discourage similar accommodations in the future. [ 7 ] Turning to the quantum of costs, the respondents provided a costs outline reflecting costs totaling approximately $100,000 on a partial indemnity basis, before HST and disbursements of $11,035.48. They seek costs of $65,000 on an all-inclusive basis.

For clarity, I have relied on the advice of the respondents’ counsel that these costs are related entirely to the issues addressed in the Remaining Issues Endorsement and do not include any time in respect of the issues addressed in the Unsolicited Goods Endorsement. [ 8 ] The applicant has not provided any costs outline. Accordingly, I have proceeded on the basis that costs in the requested amount are not outside the applicant’s reasonable expectations.

The applicant submits that there has been excessive duplication, based on four lawyers having expended considerable time on the matter, two of whom are senior counsel. The applicant also raises three other issues which, even if correct, would not result in material adjustments. [ 9 ] In fixing costs, I have had regard to the following factors, in addition to the reasonable expectations of the applicant as discussed above. First, the matter was important to both parties. Second, the issues involved were complex and interrelated.

Given the nature of the issues, it was appropriate to involve senior counsel as well as junior counsel. Third, nevertheless, I am not persuaded that two senior counsel, as well as two junior counsel, were required on this matter or at the hearing, particularly as the factual circumstances and certain common conceptual questions had already been canvassed in the hearing on the unsolicited goods issue and all of the issues

had already been argued at length in the certification hearing. Fourth, an adjustment is clearly required for duplication of time. The respondents appear to have recognized this issue as their costs outline reflects a significant reduction from their total partial indemnity costs. Lastly, while the disbursements are not itemized, it would appear that copying costs represent the preponderant share of disbursements. On this basis, the copying costs appear generous. [ 10 ] Based on the foregoing, I find fair and reasonable costs to be $55,000 payable by the applicant forthwith. Wilton-Siegel J. Date: January 20 , 2016