Clifford Lax

This endorsement addresses the costs of a motion brought by the moving parties (Singh et al.) seeking consolidation of multiple actions, payment of outstanding costs orders against Talon International Inc. (Talon), and security for costs against Talon.

The court had previously dismissed the consolidation request, ordered Talon to pay existing costs or have its defence struck, and granted security for costs in one action.

In this costs decision, the court awarded partial indemnity costs to Val Levitan and the Trump parties, who successfully opposed the consolidation motion.

Costs were denied to Alex Shnaider, who was represented by the same counsel as Talon, and Talon itself did not seek costs.

The court declined to award substantial indemnity costs to Levitan, finding the settlement offer did not trigger such an award.

The moving parties sought to consolidate 19 actions related to hotel condominium units in the Trump Tower, compel payment of outstanding costs orders against Talon International Inc. (Talon), and obtain security for costs against Talon.

The court dismissed the motion for consolidation, finding it unlikely to streamline proceedings and primarily a tactical move to enforce costs.

However, the court ordered Talon to pay existing costs awards in two specific actions within ten days, failing which its defence and counterclaim in those actions would be struck.

Security for costs was granted against Talon only in the Shah/Patel action, where Talon was the plaintiff and had insufficient assets, but denied in other actions where Talon's counterclaims were deemed defenses.

Following a 17‑day commercial trial in which the plaintiff obtained judgment for specific performance and damages exceeding its earlier settlement offer, the court determined the appropriate costs award.

The plaintiff relied on Rule 49 of the Rules of Civil Procedure, arguing that a written settlement offer transmitted by email triggered substantial indemnity costs consequences.

The court held that the email constituted a valid Rule 49 offer notwithstanding the “without prejudice” designation and rejected the defendants’ argument that such wording removed the offer from Rule 49.

In assessing quantum, the court applied the principles under s.131 of the Courts of Justice Act and Rule 57.01, emphasizing reasonableness rather than strict adherence to actual legal fees.

The court fixed costs at a lump sum reflecting partial and substantial indemnity principles and adjustments for conduct that lengthened the proceedings.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.