Andrew Duncan Gray

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.

Following motions under the Partition Act concerning the sale of a jointly owned commercial property, the court determined the appropriate costs award.

The applicant sought partial indemnity costs significantly exceeding the guideline hourly rates published by the Costs Subcommittee of the Civil Rules Committee.

The court held that the guideline rates are not mandatory and may be exceeded where justified by factors such as inflation, the substantial monetary value of the dispute, the sophistication of the parties, and the retention of Toronto counsel.

Adjusted hourly rates above the guideline maximum were approved, but the overall costs claimed were reduced due to divided success on the motions.

The court ordered the respondent to pay partial indemnity costs of $20,000 plus disbursements.

Following dismissal of a commercial action, the successful defendant sought substantial indemnity costs after making a Rule 49 offer to settle.

The court held that where a defendant’s settlement offer involves payment and the action is dismissed entirely, Rule 49 does not automatically permit substantial indemnity costs.

Relying on appellate authority limiting earlier jurisprudence, the court concluded substantial indemnity costs are only appropriate where egregious conduct is demonstrated.

While the defendant’s legal rates were reasonable, the court found some time spent excessive.

Applying the factors in Rule 57.01, the court fixed a reduced partial indemnity costs award including disbursements.