DATE: 20030408
DOCKET: C37224
COURT OF APPEAL FOR ONTARIO
RE: AVININDER CHADHA and RENU CHADHA (Appellants)
- and - BAYER INC., BAYER CORPORATION and HARCROSS PIGMENTS INC. (Respondents)
BEFORE: AUSTIN, ROSENBERG and FELDMAN JJ.A.
COUNSEL: Paul J. Pape For the appellant
J. L. McDougall, Q.C. and Kent E. Thomson For the respondent
HEARD: JUNE 3, 2002
REASONS RELEASED: JANUARY 14, 2003
C O S T S E N D O R S E M E N T
[1] The successful respondents on this appeal seek costs on a partial indemnity basis including fees and disbursements, in the amount of $90,000.00 plus G.S.T. for counsel fees for two firms which acted as co-counsel on the appeal. The respondents originally submitted a Bill of Costs claiming $200,681.28.
[2] The unsuccessful appellant submits that this is a case where no costs should be awarded, relying on s. 31(1) of the Class Proceedings Act 1992, S.O. 1992, c.6 which allows the court in a class proceeding to consider whether the class proceeding was a test case, whether it raised a novel point of law, and whether it involved a matter of public interest. In the alternative, the appellant asks that costs be fixed in the amount of $10,000.
[3] In our view, this is not a case where the court ought to order no costs. In order to fix an appropriate amount for costs, we have considered the following factors: (1) the amount claimed in the class proceeding, had it been certified, was $100,000,000., which justifies the significant expenditure of time in preparation for the appeal; (2) the appellant would know that given the magnitude of the claim, the respondents would spend substantial time in preparation for the appeal; (3) on the other hand, the bulk of the respondents’ preparation would have been done for the Divisional Court appeal; (4) it would not be appropriate to provide compensation for two sets of lead counsel. Based on these factors, an appropriate order on a partial indemnity scale is $50,000.
[4] Costs are therefore fixed at $50,000.
Signed: “Austin J.A.”
_____ “M. Rosenberg J.A.”
_____ K. Feldman J.A.”