DIVISIONAL COURT FILE NO.: 163/07
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: FRANK DEFAZIO, MIKE CRAMAROSSA AND
ASSUNTA DEFAZIO
Appellants
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTRY OF LABOUR, TORONTO
TRANSIT COMMISSION AND PINCHIN ENVIRONMENTAL
CONSULTANTS LTD.
Respondents
(Defendants)
BEFORE: CARNWATH, PIERCE AND HACKLAND JJ.
COUNSEL: Charles C. Roach & Samuel I. Willoughby, for the Appellants
Giovanna Asaro, for the Crown
John C. Field & Lauri A. Wall, for the Defendant, Toronto Transit Commission
David Waterhouse, for the Defendant, Pinchin Environmental Consultants Ltd.
COSTS ENDORSEMENT
1The plaintiffs in this class action appealed the decision of Hoy J. in which she refused to certify their action.
2The appeal raised the following four questions:
(a) Did the Class Proceedings Judge err in striking out the Plaintiffs’ Amended Statement of Claim and in deciding not to certify the class action without consideration of the Amended Statement of Claim?
(b) Did the Class Proceedings Judge properly exercise her discretion in finding that the class action was not the preferable procedure pursuant to section 5(1)(d) of the Class Proceedings Act?
(c) Did the Class Proceedings Judge err in finding that the Appellants were not suitable as Representative Plaintiffs pursuant to section 5(1)(e) of the Class Proceedings Act?
(d) Was the Order for Costs in keeping with the text and spirit of the Class Proceedings Act and the jurisprudence on costs in class proceedings?
3Following the hearing of the appeal on December 5, 2007, our decision issued on December 24, 2007. The answer to question 2(a) was “No”; the answer to question 2(b) was “Yes”; the answer to question 2(c) was “No”; and the answer to question 2(d) was “Yes”. We dismiss the appeal.
4The parties were invited to make costs submissions and those submissions have been received.
5The Toronto Transit Commission seeks fees of $32,520, disbursements, including GST, of $3,450.28 and GST on fees of $1,626, for a total of $37,596.28, all on a partial indemnity basis.
6Pinchin Environmental Consultants Ltd. seeks fees of $7,800 and disbursements, including GST, of $99.17 and GST on fees of $390, for a total of $8,289.17, all on a partial indemnity basis.
7Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Labour, seeks fees of $1,696.50, disbursements of $14.31, including GST, and GST on fees of $101.79, for a total of $1,812.60, all on a partial indemnity basis.
8In our decision issued December 24, 2007, we said the following about Hoy J.’s decision as to costs:
We find the costs order to be a model of incisive analysis and persuasion. The judge properly identified the applicable principles, reviewed the case law and the factors under r. 57.01(1). In the result, she awarded approximately fifteen percent of the amounts claimed by the respondents. She applied the principle that costs awarded against unsuccessful plaintiffs in certification motions are typically modest, relative to the actual costs incurred by successful defendants and reflective of the objective of access to justice. It is difficult to imagine a fairer or more extensive treatment of costs than that accorded to the appellants.
9We see no reason to depart from her approach to costs when considering the appropriate costs order on the appeal. We adopt her analysis.
10The Toronto Transit Commission shall have its costs fixed at $6,600, inclusive of fees, disbursements and GST, on a partial indemnity basis, payable in thirty days.
11Pinchin Environmental Consultants Ltd. shall have it costs fixed at $1,600, inclusive of fees, disbursements and GST, on a partial indemnity basis, payable in thirty days.
12Her Majesty the Queen in Right of Ontario shall have her costs fixed at $400, inclusive of fees, disbursements and GST, on a partial indemnity basis, payable in thirty days.
CARNWATH J.
PIERCE J.
HACKLAND J.
DATE: 20080206