Perhaps in tongue and cheek, perhaps not, Perell J. begins his decision in Berg v. Canadian Hockey League, 2017 ONSC 5583, by quoting Winston Churchill's famous World War II speech :

We shall defend our island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.

The quote sets upon the razor sharp line between zealous advocacy and over pleading – dubbed "Churchillian resistance"[1] –  in certification motions.

In Berg, the Plaintiffs' main claim was that Canadian and American hockey clubs in both the Ontario Hockey League and the Canadian Hockey League do not pay their players minimum wage and overtime pay under employment standards statutes. In addition, they advanced claims of (1) breach of statute, (2) breach of contract, (3) breach of duty of honesty, (4) good faith and fair dealing, negligence, (5) conspiracy and (6) unjust enrichment and waiver of tort.

The parties produced phenomenal amounts of evidence resulting in three days of oral arguments. The Plaintiffs were ultimately successful in certifying their action for breach of employment law statutes and unjust enrichment against the Canadian teams, but not the American teams.

No Novelty and Public Interest

In awarding costs, Perell J. promptly rejected the arguments for novelty and public interest litigation to reduce costs, stating that it was "disingenuous for both parties to suggest that this litigation is other than self-interested commercial litigation about enforcing an employment contract."[2]

This resistance in recognizing public interest to reduce or eliminate cost awards is echoed in Perell J.'s recent decision in Das v. George Weston Limited, 2017 ONSC 5583. In it, he dismissed a proposed class action relating to the collapse of the Rana Plaza building in Bangladesh where 1,130 people died and 2,520 people were seriously injured. Joe Fresh Apparel Canada Inc., a subsidiary of Loblaws, purchased clothes from a manufacturer who owned a factor in the Rana Plaza. The Plaintiff received financial support from the Law Foundation of Ontario's Class Proceedings Fund. The Fund argued that there should be no cost orders because the action was brought in the public interest and because the action raised many novel issues and its outcome was impossible to predict. Perell J., having regard for the way the case was aggressively pleaded and prosecuted, found that the Plaintiffs' claims were not novel in the requisite legal sense.[3]

An Expensive Cost Award

In Berg, Plaintiffs sought a partial indemnity cost of $1,212,065.63 for a certification motion; the Defendants, the Ontario Hockey League and the Canadian Hockey League, submitted that there should be no cost award. Defendant American Teams of the Ontario Hockey League against whom the action was not certified sought costs of $224,362.91.

Perell J. awarded the Plaintiffs $1,212,065.63, all inclusive, $500,000 payable forthwith with the balance of $712,065.63 payable to the Plaintiffs if they succeed at the issues at trial. He also awarded the American Teams $200,000, which was credited against the award made against the commonly represented Defendants.

Takeaway

In Berg, Perell J. ultimately concluded that both parties were equally responsible for transforming the certification motion from a procedural motion into a substantive motion where both parties attempted to justify both their legal and their moral positions. Quoting himself in the reasons for the decision, Perell J. wrote that "both sides baited the other and both sides took the bait – hook, line, sinker, and litigation fishing boat."[4]

This case serves as a stark reminder that a certification motion under the Class Proceedings Act, 1992 is procedural law, not substantive law and that Defendants should adopt a tempered approach in mounting a defence at the certification stage.

The author wishes to thank Saam Pousht-Mashhad, Student-At-Law, for his contribution to this article.

Footnotes

[1] Berg v. Canadian Hockey League, 2017 ONSC 5583, at para. 20.

[2] Berg v. Canadian Hockey League, 2017 ONSC 5583, at para. 39

[3] Das v. George Weston Limited, 2017 ONSC 5583, at paras 130-131.

[4] Berg v Canadian Hockey League, 2017 ONSC 2608 at para. 14.

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