Samuel S. Marr

This is a costs endorsement following the Court of Appeal's decision allowing an appeal by the Estate of Gabriel Zimmerman regarding its entitlement to be added as a party to the underlying action.

The court determined the costs payable by the respondents to both the Estate and the defendants for the motion heard in the lower court.

The Estate was awarded its actual partial indemnity costs, and the defendants were also awarded costs on a partial indemnity basis despite not participating in the appeal, as they benefited from the appellate decision.

Two shareholders of a holding company that owns a commercial property brought an action against defendants for their full share of annual rental income.

The property manager held back part of the funds based on acknowledgements allegedly signed by the shareholders in 2002, which purported to give a deceased property manager a 25% interest in their entitlements.

The defendants moved to add the estate of the deceased manager as a necessary party.

The motion judge dismissed the motion on the basis that the estate's claim was statute barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that the estate's claim was not statute barred because the defendants never pleaded a limitations defence and had in fact invited the estate to assert its claim.

Following the successful certification of a class action against Deloitte, the substituted representative plaintiff sought costs of $480,170.08 on a partial indemnity basis.

Deloitte argued the costs should be significantly reduced due to the narrowing of the claim, the disqualification of the initial representative plaintiff, and alleged over-lawyering.

The court rejected Deloitte's argument that there was divided success, but agreed the claimed amount was excessive.

Applying the factors under Rule 57.01(1), the court reduced the counsel fee and awarded the plaintiff costs fixed at $353,790.88 all-inclusive.

The plaintiff sought to certify a class action alleging that document reviewers, hired as independent contractors by Deloitte and Procom, were actually employees entitled to benefits under the Employment Standards Act.

The court found some basis in fact for an employer-employee relationship with Deloitte but not with Procom or ATD (a predecessor).

The court certified three common issues against Deloitte but adjourned the motion, requiring the plaintiff to revise the class definition and replace the representative plaintiff due to reliability and disinterest concerns.

The defendants sought leave to add the Estate of Gabriel Zimmerman as a party, direct payment of withheld rental income into court, and be released from liability.

The plaintiffs opposed, arguing the estate's claim was statute-barred.

The court dismissed the motion, finding the estate's claim was subject to the two-year limitation period under the Limitations Act, which had expired, and that the Trustee Act did not apply to extend the period.

The court also declined to apply the Doctrine of Special Circumstances, noting the claim had been known for years without compelling explanation for inaction.

Following the dismissal of an application for leave to appeal an order staying third party claims in a class action until completion of the common issues trial, the court addressed the issue of costs between the plaintiff and the defendant applicants.

The plaintiff sought partial indemnity costs exceeding $34,000 plus disbursements, while the defendants argued for a significantly reduced amount.

The court rejected the defendants’ criticism of the plaintiff’s preparation time and counsel allocation, emphasizing the importance of the application to the plaintiff and the plaintiff’s leadership role in responding.

Considering the relevant factors, the court fixed costs at a reduced but substantial amount within the defendants’ reasonable expectations.

Following dismissal of a motion by four donor‑distributors seeking to opt back into a class proceeding after previously opting out, the court determined the appropriate costs award.

The responding party sought $28,893 on a partial indemnity basis, while the unsuccessful moving parties argued that costs should not exceed $2,500.

The court found that the motion to opt back in was misguided and largely predictable in outcome based on existing jurisprudence.

Considering the factors in Rule 57.01(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance that costs must be fair and reasonable to the unsuccessful party, the court fixed costs at $10,000 all‑inclusive payable by the unsuccessful moving parties.

Certain class members who had previously opted out of a certified class proceeding sought to opt back into the class action after a settlement was reached and a related third party claim was stayed.

They argued they were confused at the time of opting out and unaware that the third party claim against distributors might be stayed.

The court held that voluntary opt-outs may only be invalidated where there is evidence of misinformation, coercion, or other misconduct undermining the opt-out process.

No such evidence existed, and the explanation for opting out was neither credible nor legally relevant.

Emphasizing the importance of finality and integrity in the opt-out mechanism under the Class Proceedings Act, the motion to opt back into the class proceeding was dismissed with costs.

In a certified class proceeding, the defendants sought leave to appeal a case management order that refined the common issues and stayed their third party claims against numerous distributors pending the common issues trial.

The defendants argued the stay conflicted with principles governing third party claims and with provisions of the Rules of Civil Procedure, the Courts of Justice Act, and the Class Proceedings Act.

The court held that the broad discretionary powers under ss. 12 and 13 of the Class Proceedings Act permitted such case management orders to ensure the fair and expeditious determination of class proceedings.

The court found no reason to doubt the correctness of the stay order and rejected arguments that it conflicted with other statutory provisions or prior case law.

Leave to appeal was denied.

The applicant purchaser sought a declaration that an open building permit relating to a garage constituted a valid objection to title under an agreement of purchase and sale for residential property.

The respondent estate argued the permit was inconsequential because no work had been undertaken and the permit merely authorized construction rather than requiring it.

The court held that an outstanding building permit creates potential exposure to municipal inspections, work orders, remedial construction, and litigation, thereby affecting the purchaser’s use and enjoyment of the property.

Given the uncertainty surrounding whether the permit could be closed and the potential cost of compliance, the permit constituted a defect going to the root of title.

The purchaser’s requisition requiring the permit to be closed was therefore valid and the respondent had not shown good title.

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.