James Alan Hodgson

Following dismissal of the representative plaintiffs’ motion seeking production of documents generated during a World Bank sanctions investigation involving the corporate defendant, the defendants sought costs of approximately $98,721.66 on a partial indemnity basis.

The plaintiffs argued that costs should be in the cause or substantially reduced due to proportionality and access-to-justice concerns in class proceedings, and challenged certain expert disbursements.

The court held that the defendants were entitled to recover their claimed costs but fashioned a hybrid order reflecting the realities of class action litigation.

The court ordered costs of $98,721.66 inclusive of HST, with $25,000 payable forthwith and the balance payable in the cause or set off against future costs awards if the defendants ultimately succeeded.

The ruling emphasized the multiple purposes of costs, including indemnity, discouraging meritless motions, and balancing access-to-justice concerns in complex class actions.

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.