Michael C. Spencer

The appellants succeeded on a limitation issue in a class action appeal and sought costs for the appeal and the motion below.

The Court of Appeal declined to alter the motion judge's order that costs of the motion remain in the cause.

For the appeal, the court recognized the appellants' success but modified the costs award because the appeal raised a novel issue of law and involved access to justice considerations in a class action.

The court awarded costs of the appeal in the cause, fixing them at $20,000 for the Timminco appellants, $20,000 for the Photon Consulting appellants, and $10,000 for the Walsh appellant.

The plaintiff commenced a proposed class action alleging secondary market misrepresentations by the defendants.

The statement of claim asserted common law causes of action and indicated an intention to seek leave to assert a statutory cause of action under section 138.3 of the Securities Act.

Facing a potential limitation issue, the plaintiff successfully moved for a declaration that the limitation period was suspended under section 28 of the Class Proceedings Act.

The defendants appealed.

The Court of Appeal allowed the appeal, holding that a statutory cause of action under section 138.3 is not 'asserted' within the meaning of section 28 until leave to proceed has been granted.