Barbara Jane Finlay

Following the dismissal of a motion for leave to appeal, the successful defendants sought costs.

The plaintiff argued that costs should be in the cause of a forthcoming leave and certification motion, but the court rejected this position and held that costs should generally be determined at each stage of the proceeding.

The court also rejected the plaintiff’s submission that the defendants’ costs should be limited to the range the plaintiff would have sought had it succeeded.

Considering the rates of senior counsel and the parties’ costs outlines, the court fixed fair and reasonable costs payable by the plaintiff.

The plaintiff sought leave to appeal an interlocutory order dismissing a motion to compel answers and document production arising from a cross‑examination on an affidavit filed in a class proceeding certification motion.

The underlying dispute concerned whether defendants were required to answer questions relating to a proposed statutory cause of action under Part XXIII.I of the Ontario Securities Act when the affidavit had been filed only for purposes of certification under the Class Proceedings Act.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court held that leave to appeal requires either conflicting authority or good reason to doubt the correctness of the order, together with sufficient importance of the issue.

The court found neither conflicting decisions nor any basis to doubt the motion judge’s ruling that the refused questions were irrelevant to the certification motion.

Leave to appeal was therefore denied.