



COURT OF APPEAL FOR ONTARIO

CITATION: Bancroft-Snell v. Visa Canada Corporation, 2020
    ONCA 549

DATE: 20200901

DOCKET: M49808, M50041 & M50130 (C66008)

Strathy C.J.O., MacPherson, Sharpe, Tulloch and
    Benotto JJ.A.

DOCKET:
    M50130

BETWEEN

Jonathon
    Bancroft-Snell,
and
1739793 Ontario Inc.

Plaintiffs
(Moving Parties)

Visa Canada Corporation
,
Mastercard International Incorporated
, Bank of
    America Corporation,
Bank of Montreal
,
Bank of Nova Scotia
,
Canadian
    Imperial Bank of Commerce
, Capital One Financial Corporation, Citigroup
    Inc., Federation des caisses Desjardins du Quebec,
National
    Bank of Canada Inc.
,
Royal Bank of Canada
,
    and
Toronto-Dominion Bank.

Defendants
(Moving Parties)

AND BETWEEN

DOCKET:
    M49808

Jonathon
    Bancroft-Snell
, and
1739793 Ontario Inc.

Plaintiffs
(Responding Parties)

Visa Canada Corporation
,
Mastercard International Incorporated
, Bank of
    America Corporation,
Bank of Montreal
,
Bank of Nova Scotia
,
Canadian
    Imperial Bank of Commerce
, Capital One Financial Corporation, Citigroup
    Inc., Federation des caisses Desjardins du Quebec,
National
    Bank of Canada Inc.
,
Royal Bank of Canada
,
    and
Toronto-Dominion Bank.

Defendants
(Responding Parties)

AND BETWEEN

DOCKET:
    M50041

Jonathon
    Bancroft-Snell
, and
1739793 Ontario Inc.

Plaintiffs
(Responding Parties)

Visa Canada Corporation
,
Mastercard International Incorporated
, Bank of
    America Corporation,
Bank of Montreal
,
Bank of Nova Scotia
,
Canadian
    Imperial Bank of Commerce
, Capital One Financial Corporation, Citigroup
    Inc., Federation des caisses Desjardins du Quebec,
National
    Bank of Canada Inc.
,
Royal Bank of Canada
,
    and
Toronto-Dominion Bank.

Defendants
(Responding Parties)

Reidar Mogerman and Katie Duke, for Jonathan
    Bancroft-Snell and 1739793 Ontario Inc., moving parties (M50130), responding
    parties (M49808 & M50041)

Robert E. Kwinter, for Visa Canada Corporation, moving
    party (M50130), responding party (M49808 & M50041)

Jeffrey B. Simpson and James B. Musgrove, for Mastercard
    International Incorporated, moving party (M50130), responding party (M49808
    & M50041)

Katherine L. Kay, for Bank of Montreal, Bank of Nova
    Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada and
    Toronto-Dominion Bank, moving parties (M50130), responding parties (M49808
    & M50041) (no submissions made)

Sean Griffin and Antoine Brylowski, for National Bank of
    Canada Inc., moving party (M50130), responding party (M49808 & M50041)

James C. Orr and Kyle R. Taylor, for Home Depot of
    Canada Inc., moving party (M49808), responding party (M50130)

Edward J. Babin, Cynthia L. Spry, and Michael Bookman,
    for Wal-Mart Canada Corp., moving party (M50041), responding party (M50130)

Heard: September 4, 2019

COSTS ENDORSEMENT

[1]

On October 17, 2019, a five-judge panel of this court
[1]
released reasons granting the moving parties motion to quash the appeal and
    dismissing the responding parties motions for leave to act as representative
    plaintiffs. The reasons stipulated that the parties may make written
    submissions if they were unable to agree on costs.

[2]

An application to the Supreme Court of Canada for leave to appeal this
    courts order was dismissed: 2020 CanLII 23634 and 2020 CanLII 23637.

[3]

On May 11, 2020, counsel for the representative plaintiffs filed
    submissions claiming costs of $95,677.57, inclusive of disbursements and HST.
    Their covering letter noted that they had been unsuccessful in resolving the
    costs of this proceeding and of similar proceedings in other provinces.

[4]

Mastercard and Visa, which were represented by the same counsel, jointly
    seek costs of $25,000, inclusive of disbursements and HST, with 50% of that
    amount to be paid by Wal-Mart and 50% to be paid by Home Depot. This is a
    significant reduction from their partial indemnity costs, which they set at
    $127,580, inclusive of HST and exclusive of disbursements.

[5]

National Bank seeks costs of $19,492.79, inclusive of disbursements and
    HST, for its motion to quash Wal-Marts appeal. It does not seek costs against
    Home Depot, which did not object to the settlement National Bank reached with
    the representative plaintiffs.

[6]

Home Depot and Wal-Mart submit that there is no jurisdiction to award
    costs against them. They rely on s. 31(2) of the
Class Proceedings Act,
    1992
, S.O. 1992, c. 6 (
CPA
), which provides that [c]lass
    members, other than the representative party, are not liable for costs except
    with respect to the determination of their own individual claims.

[7]

The purpose of s. 31(2) is to insulate class members from the costs of
    the various stages of class proceedings, such as certification and the common
    issues trial, in which they do not participate as a matter of course: see
Trillium
    Motor World Ltd. v. General Motors of Canada Limited
, 2017 ONCA 545, at
    para. 61. But this does not preclude the award of costs against a class member
    who seeks standing to participate in the proceeding, or who interjects
    themselves into the proceeding without seeking leave.

[8]

Section 14(1) of the
CPA
provides that to ensure fair and
    adequate representation of the interests of the class or any subclass, or for
    any other appropriate reason, the court may, at any time in a class proceeding,
    permit one or more class members to participate in the proceeding. Subsection
    (2) provides that [p]articipation under subsection (1) shall be in whatever
    manner and on whatever terms, including terms as to costs, the court considers
    appropriate.

[9]

In
Dabbs v. Sun Life Assurance Co. of Canada
, [1998] O.J. No.
    1598 (Ont. Gen. Div.), at paras. 28-29, Sharpe J., as he then was, held that a
    class member who sought standing to object to a settlement approval was subject
    to a costs award. See also
Silver v. IMAX
, 2012 ONSC 4064, at paras.
    10-13.

[10]

We
    are satisfied that the courts jurisdiction under ss. 14(1) and (2) of the
CPA
necessarily includes the ability to award costs against a class member who
    unsuccessfully seeks to represent the class in order to object to a settlement
    negotiated by the representative plaintiff.

[11]

Home
    Depot also argues that costs should not be granted to the moving parties
    because they are being sought seven months after the release of the courts
    decision. Home Depot points to the courts Practice Direction on Civil Appeals,
    s. 18.5, which requires that, unless the court directs otherwise, a party
    entitled to costs shall deliver its bill of costs together with any submissions
    within seven days of the release of the decision.

[12]

The
    delivery of costs submissions long after an appeal has been heard is burdensome
    for the parties and for the court. In some cases, it might result in costs
    being refused all together. In this case, the application for leave to appeal
    to the Supreme Court of Canada, the added complexity of proceedings in other
    jurisdictions, reasonable efforts to resolve costs and the intervention of a
    national health emergency provide justification for the delay.

[13]

The
    motions were of significance to all the parties. The possibility that the responding
    parties would be allowed to proceed with their appeal threatened to completely
    upend the settlement of the class proceeding. We do not accept the submission
    of Home Depot and Wal-Mart that the parties should bear their own costs because
    the issues were novel. We found that the law had been settled for twenty
    years.

[14]

The
    amounts claimed by Visa, Mastercard and National Bank are reasonable, and we
    award them their costs as claimed, payable in the manner indicated above. The
    amount claimed by the representative plaintiffs, while perhaps reasonable by
    their lights, exceeds what the responding parties could reasonably be expected
    to pay. We fix their costs at $50,000, inclusive of disbursements and all
    applicable taxes.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Tulloch J.A.

M.L. Benotto J.A.





[1]
Sharpe J.A. retired subsequent to the release of the reasons and did not
    participate in this decision as to costs.


