Emma Holland

Following certification of a national class proceeding and dismissal of defendants’ summary judgment motions, the court determined costs arising from the certification and related motions.

The court applied Rule 57 of the Rules of Civil Procedure and principles governing costs in class proceedings, including fairness, reasonable expectations of the parties, and the access to justice objectives of the Class Proceedings Act, 1992.

The litigation involved extensive evidence, numerous defendants, and complex factual and legal issues affecting approximately 10,000 class members with alleged losses approaching $150 million.

The court rejected requests for substantial indemnity costs and declined to refer costs to formal assessment, instead fixing costs directly.

Significant partial indemnity costs and disbursements were awarded to the plaintiff, apportioned among the defendant groups.

The plaintiff brought a motion to certify a class action against the promoters, lawyers, and other entities involved in a charitable donation tax shelter scheme called the Donations for Canada Gift Program.

The Canada Revenue Agency had disallowed the charitable tax credits claimed by the participants, finding they lacked donative intent.

The defendants brought motions for summary judgment.

The court certified the action as a class proceeding, finding that the pleadings disclosed causes of action in negligence, negligent misrepresentation, fraud, conspiracy, breach of contract, and unjust enrichment.

The court dismissed the defendants' motions for summary judgment, concluding that a trial was required to fully appreciate the evidence and resolve the complex factual issues, including whether the contracts were vitiated by fraud.

The defendant appealed a Master's order dismissing her motion for leave to issue a third party claim.

The Master had dismissed the motion due to an 18-month delay, finding the defendant failed to prove there would be no prejudice to the plaintiffs.

The Divisional Court allowed the appeal, holding that the onus is on the opposing party to establish prejudice, and the plaintiffs had not opposed the original motion.

The court found the delay would not cause undue prejudice that could not be compensated by costs, and granted leave to issue the third party claim to avoid a multiplicity of proceedings.