Patrick Mazurek

Following the certification of a class action for primary market misrepresentation and breach of contract, the plaintiff sought costs against a defendant who consented to certification shortly before the scheduled motion.

The defendant argued there should be no order as to costs or costs in the cause.

The court found that the defendant's late consent necessitated additional work by the plaintiff and awarded the plaintiff costs of $10,000 plus HST in the cause.

This was a costs decision arising from a class proceeding settlement approval process involving objectors represented at a third settlement approval hearing.

The court held that the unusual procedural history made the case unsuitable for setting broader principles about costs to objectors, and instead enforced its earlier direction that up to $100,000 had been budgeted for this expense, less $17,500 already awarded in the abandoned appeal.

The objectors' claim for $222,515 all inclusive was rejected as excessive.

The court awarded $82,500 all inclusive, holding that services connected to taking instructions, the abandoned appeal circumstances, and preparation for and attendance at the settlement approval motion fell within the intended scope of compensable work.