



COURT OF APPEAL FOR ONTARIO

CITATION:
Green v. Canadian Imperial Bank of Commerce, 2014 ONCA
    344

DATE: 20140501

DOCKET: C55832, C55982, C56252

Doherty, Feldman, Cronk, Blair and Juriansz JJ.A.

C55832

BETWEEN

Howard Green and Anne Bell

Plaintiffs (Appellants)

and

Canadian Imperial Bank of Commerce, Gerald
    McCaughey, Tom Woods, Brian G. Shaw, and Ken Kilgour

Defendants (Respondents)

C55982

BETWEEN

Marvin Neil Silver and Cliff Cohen

Plaintiffs (Respondents)

and

IMAX Corporation, Richard L. Gelfond, Bradley J.
    Wechsler, Francis T. Joyce, Neil S. Braun, Kenneth G. Copland, Garth M. Girvan,
    David W. Leebron and Kathryn A. Gamble

Respondents (Appellants)

C56252

BETWEEN

Trustees of the Millwright Regional Council of
    Ontario Pension Trust Fund

Plaintiffs (Respondents)

and

Celestica Inc., Stephen W. Delaney and Anthony P.
    Puppi

Defendants (Appellants)

AND BETWEEN

Nabil Berzi

Plaintiffs (Respondents)

and

Celestica Inc., Stephen W. Delaney and Anthony P.
    Puppi

Defendants (Appellants)

AND BETWEEN

Huacheng Xing

Plaintiffs (Respondents)

and

Celestica Inc., Stephen W. Delaney and Anthony P.
    Puppi

Defendants
    (Appellants)

R. Paul Steep and Dana M. Peebles, for the appellants IMAX
    Corporation, Richard L. Gelfond, Bradley J. Wechsler, Francis J. Joyce, Neil S.
    Braun, Kenneth G. Copland, Garth M. Girvan, David W. Leebron and Kathryn A.
    Gamble

William V. Sasso, A. Dimitri Lascaris, Serge Kalloghlian
    and Daniel E. Bach, for the respondents Marvin Neil Silver and Cliff Cohen

Joel P. Rochon, Peter R. Jervis, Sakie Tambakos, John
    Archibald and Remissa Hirji, for the appellants Howard Green and Anne Bell

James C. Tory and Sheila Block, for the respondent
    Canadian Imperial Bank of Commerce

Benjamin Zarnett and David Conklin, for the respondents Gerald
    McCaughey, Tom Woods, Brian G. Shaw, and Ken Kilgour

Nigel Campbell and Ryan A. Morris, for the appellants
    Celestica Inc., Stephen W. Delaney and Anthony P. Puppi

Kirk M. Baert, Celeste Poltak, Michael Mazzuca, Peter
    Prozanski and Trent Morris, for the respondents Trustees of the Millwright
    Regional Council of Ontario Pension Trust Fund, Nabil Berzi, Huacheng Xing

Anna Perschy, for the intervenor Ontario Securities
    Commission

Alan L.W. D'Silva, Mark E. Walli and Lesley Mercer, for
    the intervenor Insurance Bureau of Canada

Margaret L. Waddell, for the intervenor Canadian
    Foundation for Advancement of Investor Rights

Jonathan Bida, for the intervenor Shareholder
    Association for Research and Education

Heard: May 13, 14, 15, 16, 2013

On appeal from the order of Justice G.R. Strathy of the
    Superior Court of Justice, dated July 3, 2010, with reasons reported at 2012
    ONSC 3637 (C55832); and on appeal from the order of Justice K.M. van Rensburg
    of the Superior Court of Justice, dated August 27, 2012, with reasons reported
    at 2012 ONSC 4881 (C56252); and on appeal from the order of Justice P.M. Perell
    of the Superior Court of Justice, dated October 15, 2012, with reasons reported
    at 2012 ONSC 6083 (C56252).

COSTS ENDORSEMENT

Feldman J.A.:

[1]

At the conclusion of the Reasons for Decision released February 3, 2014,
Green v. Canadian Imperial Bank of Commerce
, 2014 ONCA 90, 118 O.R.
    (3d) 641, the parties in each of the three appeals were given the opportunity
    to either agree on costs or to make brief written submissions with respect to
    the costs of their respective appeals. The court has received submissions on
    costs in two of the appeals.

Green
and Bell v. CIBC et al

[2]

The successful appellants bill of costs for this appeal sets out
    $503,333.50 in fees (plus HST) on the partial indemnity scale, plus
    disbursements, inclusive of HST, of $14,504.87. However, the appellants reduced
    their claim for costs to $125,000 for fees (plus HST), and $10,000 for
    disbursements, for a total costs award of $151,250.

[3]

The respondents do not oppose an award of costs of the appeal to the
    appellants on the partial indemnity scale. Their objection is to the amount
    claimed. They suggest an award of $50,000, inclusive of disbursements and HST.

[4]

The respondents make four submissions to support their position.

[5]

The first is that the appellants lawyers spent too much time on the
    appeal (1783.8 hours in total). In contrast, the respondents lawyers spent
    1097.40 total hours.

[6]

It appears that appellants counsel recognized that the number of hours
    actually spent could not reasonably be used as the basis for a costs award,
    because they reduced their fee claim by approximately 75%. They also reduced
    the amount claimed for disbursements, although the court was not given details
    of the disbursements.

[7]

The respondents second submission is that they should not be expected
    to bear the extra costs incurred because on the courts own motion, the appeal
    was adjourned to be argued with the two other appeals before the five-judge
    panel. I do not accept this submission. Any additional costs incurred were part
    of the process necessary to address the important legal issue regarding the
    tolling of the limitation period for class action plaintiffs under s. 28 of the
Class Proceedings Act
,
1992
, S.O. 1992, c. 6. As discussed in
    the Reasons for Decision, that issue has a direct impact on access to justice
    for class members, particularly in the context of class actions under Part
    XXIII.1 of the
Securities Act,
R.S.O. 1990, c. S.5. In any event, the
    appellants reduction in the amount claimed for costs essentially removes the
    effect on costs of the additional procedure.

[8]

The respondents third submission is that because the appeal
    involved matters of public interest, a costs factor under s. 31(1) of the
Class
    Proceedings Act
, the amount of costs to the successful party should be
    reduced. The respondents cite this courts decision in
McCracken v.
    Canadian National Railway Company
, 2012 ONCA 797, where the court reduced
    the costs of the successful defendant, Canadian National Railway, because the
    appeal raised novel issues and engaged the access to justice rationale of the
Class
    Proceedings Act
.

[9]

In my view,
McCracken
is distinguishable from the
    present appeal. In
McCracken
, because the defendant was successful,
    the costs were to be paid by the class action representative plaintiff and the
    Class Proceedings Fund of the Law Foundation of Ontario. In
McCracken
,
    the court determined that access to justice considerations were implicated when
    either a class plaintiff or the Law Foundation of Ontario is  required to pay
    costs awards imposed on these litigants. The amount of the award was moderated
    as part of those considerations. By contrast, in
Pearson v. Inco

Ltd
.
    (2006), 79 O.R. (3d) 427 (C.A.), at para. 8, the court found that the fact that
    the issue on the appeal was a matter of public interest and engaged s. 31(1) of
    the
Class Proceedings Act
was a factor that favoured a
more

significant costs award to the
    successful class plaintiffs.

[10]

The fourth submission is that because this court overruled
    its own prior holding, there should be no costs award. That was the result in
David
    Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co.
, 2008
    ONCA 703, 93 O.R. (3d) 257. In that case, the unsuccessful plaintiffs argued
    that because they had brought class actions in reliance on an earlier ruling of
    the court that was later overruled after their actions had commenced, they
    should therefore receive an award of costs. The court declined to do so. It
    then considered whether the successful insurers should receive their costs from
    the unsuccessful plaintiffs and the Law Foundation of Ontario in accordance
    with the normal rule, and concluded that in the circumstances where the class
    actions had been instituted based on the courts prior ruling, and because the
    appeal was a test case that settled the law for everyone, it was appropriate to
    make no costs order.

[11]

The factors that applied in
Polowin
are not
    applicable in this case. There were no steps taken by any of the parties to
    these appeals in detrimental reliance on this courts decision in
Sharma v.
    Timminco Ltd.,
2012 ONCA 107, 109 O.R. (3d) 569. As the respondents have
    properly acknowledged, the successful appellants are entitled to their costs
    here. The issue is what constitutes a fair and reasonable award:
Boucher v.
    Public Accountants Council for the Province of Ontario
(2004), 71 O.R.
    (3d) 291 (C.A.).

[12]

In my view, the appellants have acted reasonably in significantly
    reducing their claim for fees and disbursements, to reflect the fact that the
    number of hours spent by the number of lawyers involved does not represent a
    reasonable amount to be paid by the respondents. The amount claimed by the
    appellants is fair and reasonable in light of the costs factors set out in rule
    57.01(1) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194
.
The proceedings were
    complex, and the issue on the appeal was a matter of public interest that
    affects access to justice for class action plaintiffs, particularly for claims
    under s. 138.3 of the
Securities Act
. I would award the amount
    claimed: $151,250.00, inclusive of disbursements and HST.

Silver and Cohen v. Imax et al.

[13]

The successful respondents claim costs of the appeal of $100,000.00,
    inclusive of disbursements and HST. This represents a significant reduction of
    the actual partial indemnity bill of $329,702.39.

[14]

The
    appellants submit that there should either be no costs of the appeal, or if
    costs are awarded to the successful party, then a fair and reasonable amount is
    $55,000, inclusive of disbursements and HST.

[15]

The
    appellants main submission is that the respondents over-lawyered the case.
    They spent over 1100 hours, while the appellants spent only 259.9 hours.

[16]

On
    the motion, the motion judge accepted the law as set out in
Sharma v.
    Timminco Ltd.
and extended the limitation period by applying the doctrine
    of
nunc pro tunc
. It was this latter finding that the appellants
    appealed. However, in this court, the appeal turned on the reconsideration of
Sharma
    v. Timminco
only. The appellants point to the significance of the case for
    them. It was clearly significant for all parties and for securities class
    action practice generally. The respondents and all parties had to address not
    only the issue raised by the decision of the motion judge but also the issue
    raised by the court.

[17]

In
    my view, in these unusual circumstances, the amount claimed by the respondents
    is fair and reasonable. It is also comparable to the amount set out in the
    appellants own bill of costs for the appeal, which indicates that the
    appellants incurred fees on a partial indemnity basis in the amount of
    $98,007.16, inclusive of HST.

[18]

I
    would award the amount claimed for costs of $100,000, inclusive of
    disbursements and HST.

Kathryn Feldman J.A.

I agree. Doherty J.A.

I agree. E.A. Cronk
    J.A.

I agree. R.A. Blair
    J.A.

I agree. R.G. Juriansz
    J.A.


