Lauri A. Wall

The appellants were unsuccessful in their appeal of a decision refusing to certify their class action.

The respondents sought costs on a partial indemnity basis.

The Divisional Court adopted the approach of the motion judge, who had awarded approximately 15% of the amounts claimed by the respondents, reflecting the principle that costs against unsuccessful plaintiffs in certification motions are typically modest to promote access to justice.

Costs were fixed at $6,600 for the TTC, $1,600 for Pinchin Environmental, and $400 for the Crown.

The appellants appealed a decision refusing to certify their action as a class proceeding.

The proposed class action concerned alleged asbestos exposure at a subway station during demolition activities.

The Divisional Court dismissed the appeal, finding no error in the motion judge's decisions to strike the amended statement of claim, conclude that a class action was not the preferable procedure due to overwhelming individual issues, and find the proposed representative plaintiffs unsuitable due to egregious delay and concerns regarding counsel's competency.

The appellants appealed a decision of the class proceedings judge who struck out their Amended Amended Statement of Claim.

The judge had put the appellants to an election to either abandon the proposed amendment or proceed with it after submissions on costs thrown away, pursuant to section 12 of the Class Proceedings Act.

The Divisional Court dismissed the appeal, finding that the judge made no error in her analysis and application of section 12 to ensure the fair and expeditious determination of the proceeding.