Michael W. Bader

Following the dismissal of the plaintiffs' action against the Canada Revenue Agency and others, the successful defendants sought costs of $766,325.50 on a partial indemnity basis.

The court found the hours docketed by the defendants' counsel to be excessive and duplicative, noting the involvement of multiple senior counsel.

Applying the principle of reasonableness and proportionality, the court fixed the costs payable by the plaintiffs at $273,000, inclusive of disbursements and taxes.

The plaintiffs, including a software partnership and its investors, brought an action against the Canada Revenue Agency and its agents for negligent investigation, misfeasance in public office, and Charter breaches arising from a tax audit and subsequent criminal investigation into a suspected tax shelter fraud.

The court dismissed the action, finding that the auditor did not cross the line into a criminal investigation improperly, and that the investigators met the standard of care.

The court concluded there was substantial evidence supporting the CRA's belief that the enterprise was a fraudulent tax scheme, and no actionable wrongs were committed by the defendants.

During an abbreviated civil trial for negligent investigation against the Canada Revenue Agency, the defendants sought to introduce transcripts of testimony given by a now-deceased CRA auditor during a prior criminal preliminary inquiry.

The plaintiffs objected on the basis of hearsay.

The court applied the principled exception to the hearsay rule, finding that the necessity criterion was met due to the auditor's death, and the reliability criterion was satisfied because the auditor had been rigorously cross-examined on relevant issues during the preliminary inquiry.

The transcripts were ruled admissible.

The applicants sought equitable relief and rectification of a second mortgage registered against a property.

Due to a Land Titles office error during conversion from the Registry System, the property owner's name was incorrectly recorded on three of four property identification numbers (PINs), leading to the applicants' mortgage being registered against only one PIN.

The Minister of National Revenue (NR), a subsequent lienholder, argued that the applicants should pursue other remedies like suing their lawyer or claiming against the Land Titles Assurance Fund.

The court found a clear common intention for the mortgage to cover the entire property and granted the equitable relief and rectification, allowing the applicants to enforce their mortgage against all four parcels, thereby maintaining their priority over NR's later-registered liens.

The plaintiffs successfully defended an appeal from a certification order and sought substantial indemnity costs, arguing the defendant's conduct was part of a litigation strategy to obfuscate and delay.

The Divisional Court rejected this argument, finding no reprehensible conduct to justify substantial indemnity costs.

The court awarded the plaintiffs partial indemnity costs fixed at $35,000, finding the defendant's costs outline of approximately $34,400 to be a more reasonable reflection of the work required for two half-day hearings.

Following a re-hearing of a class action certification motion relating to the ‘Sixties Scoop’, the court addressed costs after granting certification and dismissing the federal Crown’s motion to strike.

The plaintiffs sought substantial indemnity costs, but the court held that such costs require reprehensible or outrageous conduct and were not justified.

Applying a partial indemnity scale and reviewing historical certification-motion cost awards, the court found the plaintiffs’ request modest given the complexity of the litigation and the work spanning both the original and rehearing motions.

The court fixed costs at an all-inclusive amount reflecting fairness to the losing party and proportionality to comparable certification proceedings.

The plaintiffs brought a motion to certify a class action against the Federal Crown regarding the 'Sixties Scoop', alleging breach of fiduciary duty and negligence for funding provincial child welfare services that placed on-reserve aboriginal children in non-aboriginal homes without protecting their cultural identity.

The Federal Crown brought a cross-motion to strike the pleadings under Rule 21.

The court dismissed the motion to strike, finding it was not plain and obvious that the claims would fail, given the evolving nature of aboriginal law.

The court granted the certification motion, revising the class definition and common issues to focus specifically on the impact of the 1965 Canada-Ontario Welfare Services Agreement.

The parties made costs submissions following an appeal.

Given the divided success of the parties, the Court of Appeal ordered that there be no costs awarded for the motion for leave to appeal or the appeal.

The appellants appealed a Divisional Court order that set aside the conditional certification of their proposed class action against Canada regarding the placement of Aboriginal children in non-Aboriginal foster care.

The Court of Appeal upheld the Divisional Court's finding that the case management judge erred by conditionally certifying the action when the statement of claim did not disclose a viable cause of action.

The Court also agreed that the certification motion should be heard by a different judge to avoid the original judge sitting in review of his own decision.

However, the Court allowed the appeal regarding costs, quashing the Divisional Court's costs award because it failed to consider the public interest and novel legal issues raised by the case.

The Attorney General of Canada appealed a motion judge's decision to conditionally certify a class action on behalf of aboriginal people placed in non-aboriginal foster or adoptive homes.

The motion judge had found that the statement of claim did not disclose a cause of action but conditionally certified claims in negligence and breach of fiduciary duty, effectively pre-approving an amended pleading.

The Divisional Court allowed the appeal, holding that the motion judge erred by predetermining the viability of the cause of action without conducting a full analysis and denying the defendant the opportunity to argue the certification criteria.

The statement of claim was struck with leave to amend, and the certification motion was ordered to be heard by a different judge.