DeWolf v. Bell ExpressVu Inc., 2009 ONCA 765

COSTS ENDORSEMENT

1By reasons released September 11, 2009, 2009 ONCA 644 this court allowed the appellants’ appeals by setting aside the motion judge’s order granting summary judgment in favour of the respondent and substituting an order dismissing the respondent’s claim in its entirety.

2The appellants seek costs on a partial indemnity basis of $171,024.56 for the action and $96,144.62 for the appeal.

3This is a class action and it was funded by the class proceedings fund which is administered by the Law Foundation of Ontario. The fund is responsible for any cost award made in favour of the appellants and the submissions on cost were made by the Foundation. The Foundation argues that there should be no award of costs on the basis that the present case brings into play the special factors listed in s. 31(1) of the Class Proceedings Act, 1992 S.O. (1992), c. 6. Specifically, the Foundation submits that the present case was in the nature of a test case, involved novel issues of law and raised matters of public interest. In the alternative, the Foundation submits that the costs being claimed are unreasonably high and ought to be substantially reduced.

4In our view, this case does not bring into play the factors listed in s. 31 of the Class Proceedings Act. We agree with the appellants’ submission that, in essence, this case simply involved applying the Supreme Court of Canada’s decision in Garland v. The Consumers Gas Company Limited, 1998 CanLII 766 (SCC), [1998] 3 S.C.R. 112 to the facts of this case. This said, we consider that the relatively straightforward nature of the case is such that the amounts being sought by the appellants are somewhat high. We recognize that the appellants have carefully reviewed the draft bills of costs to remove possible duplication and that efforts were made to avoid including any time associated with portions of the action where costs have already been dealt with. However, this was a one day appeal with few legal issues. Although the amounts in issue were significant, the action was not overly complex.

5In the circumstances, therefore, we consider that costs of the appeal, including the motion for leave to appeal, should be fixed at $55,000. The costs of the action, including the summary judgment motion but excluding the certification motion, should be fixed at $125,000. Both are inclusive of GST and disbursements.