Court File No.: 481/04

Date: 20051209

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: STEPHEN MARKSON (Plaintiff/Appellant) v. MBNA CANADA BANK (Defendant/Respondent)

BEFORE: O’DRISCOLL, DUNNET and JENNINGS JJ.

COUNSEL: Margaret L. Waddell and William G. Horton and Kirk Baert Jill M. Lawrie for the Plaintiff/Appellant for the Defendant/Respondent

E N D O R S E M E N T A S T O C O S T S

DUNNET J.:

[1] For written reasons released on October 27, 2005, the appeal from the decision of the motions judge refusing certification of the proposed class proceeding was dismissed, O’Driscoll J. dissenting.

[2] The appellant’s position is that no costs should be payable in respect of the appeal.

[3] The respondent contends that there are no special circumstances to justify a departure from the general rule that the successful party is usually entitled to costs. It is submitted that costs should be fixed on a partial indemnity basis in the amount of $43,650.00 plus GST for fees and $2,628.73 plus GST for disbursements.

[4] In the court below, the motions judge exercised his discretion to make no award of costs after considering the purpose and effect of s. 31 of the Class Proceedings Act,1992, S.O. 1992, c. 6 (the Act). The respondent did not appeal the costs decision.

[5] It is now asserted by the respondent that even if the section 31 factors were relevant in the court below, in the face of a comprehensive ruling by the motions judge, the appellant chose to press his arguments before this Court.

[6] In our Reasons for Judgment, we found that the motions judge carefully reviewed and considered the relevant evidence before him and was entitled, on that evidence, to make the factual findings that he did. Further, he considered and properly applied the requirements of s. 5(1) of the Act and committed no error on matters of general principle to justify appellate intervention.

[7] In support of its submissions, the respondent contends that this Court should have regard to the factors enumerated in Rule 57.01(1) of the Rules of Civil Procedure, and in particular, the amount claimed in the proceeding, the complexity of the proceeding, and the importance of the issues.

[8] The respondent maintains that, given the appellant’s requests for an accounting, an injunction and for punitive damages, the claim represented a significant risk to the respondent. The appeal required an appreciation of legal issues relating to the calculation of effective interest rates in the context of a complex set of facts surrounding the credit card business of the respondent. Further, the importance placed on defending the appeal cannot be overstated, given the allegations that the respondent’s credit practices were in contravention of the Criminal Code.

[9] In his endorsement on costs, the motions judge found that the scope of s. 347 of the Criminal Code and the extent to which it may interfere with standard commercial practices that affect millions of Canadians is a matter of sufficient public importance to qualify as one of public interest for the purposes of s. 31(1) of the Act.

[10] He also found that the substantive issues involved in the appellant’s claims raised a novel question of law, because they involved the interpretation of s. 347 and the decisions that bear on it. Further, he noted that the action might be considered to be a test case in the broad sense that success for the plaintiff is likely to affect the banking practices of other financial institutions.

[11] We concur with the opinion of the motions judge that it is not unreasonable to infer that a party that knowingly takes the risk that it is acting illegally has also accepted a risk that it will become involved with proceedings instituted by persons affected by its conduct.

[12] Of importance is the finding by the motions judge, with which we concurred, that the appellant had failed to establish that a class proceeding was the preferable procedure for resolving the common issues.

[13] The motions judge recognized the wisdom of a practical cost-benefit analysis associated with the requirement to individually review millions of transactions and the appellant’s concession that individual claims were unlikely to exceed $7.50. He found that the appellant had failed to present sufficient evidence to suggest that the benefits to class members would outweigh the costs necessarily inherent in any class proceeding or that a class action would serve the interests of justice.

[14] In Caputo v. Imperial Tobacco Ltd., 2005 63806 (ON SC), [2005] O.J. No. 842 (S.C.J.), at para. 29, Winkler J. stated:

…A consideration of whether a class proceeding is the preferable procedure for determining the common issues is a matter of broad discretion. Thus counsel to the proposed representative plaintiffs can do everything right and still be unable to predict with certainty the outcome when it comes to this criterion. Surely if a class were not certified on this ground a court would be justified in the exercise of its discretion to consider this in deciding whether to award costs against the plaintiff.

[15] In appropriate cases involving class proceedings, appellants should not be permitted to pursue issues and arguments without fear of ever having to bear responsibility for costs. We are of the view that for the reasons articulated by the motions judge, this is not such a case.

[16] Given our finding, we decline to pursue an analysis of the bill of costs presented by the respondents.

[17] Accordingly, there is no order of costs of the appeal.

RELEASED:

COURT FILE NO.: 481/04

DATE: 20051209

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: stephen markson (Plaintiff/Appellant) v. MBNA CANADA BANK (Defendant/Respondent)

BEFORE: O’DRISCOLL, DUNNET AND JENNINGS JJ.

COUNSEL: Margaret L. Waddell and Kirk Baert, for the Plaintiff/Appellant

William G. Horton and Jill M. Lawrie, for the Defendant/Respondent

E N D O R S E M E N T A S T O C O S T S

O’DRISCOLL J.:

[18] Although I dissented from the result and reasons of the majority (Dunnet and Jennings JJ.) and would have allowed the appeal, I agree with their disposition on costs and, like them, would make no order as to costs on this appeal.

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O’Driscoll J.

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