DATE: 20050302

DOCKET: C40771

COURT OF APPEAL FOR ONTARIO

RE:

MARLENE C. CLOUD, GERALDINE ROBERTSON, RON DELEARY, LEO NICHOLAS, GORDON HOPKINS, WARREN DOXTATOR, ROBERTA HILL, J. FRANK HILL, SYLVIA DELEARY, WILLIAM R. SANDS, ROSEMARY DELEARY, and SABRINA YOLANDA WHITEYE (Plaintiffs (Appellants)) and THE ATTORNEY GENERAL OF CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA, THE INCORPORATED SYNOD OF THE DIOCESE OF HURON and THE NEW ENGLAND COMPANY (Defendants (Respondents))

BEFORE:

CATZMAN, MOLDAVER AND GOUDGE JJ.A.

COUNSEL:

Kirk M. Baert and Russell M. Raikes

for the appellants

Paul Vickery, Monika Lozinska and Donald Padget

for the respondent Attorney General of Canada

Robert B. Bell

for the respondent New England Company

Brian T. Daly and Lisa Gunn

for the respondent Diocese of Huron

HEARD:

May 10 and 11, 2004

RELEASED:

December 3, 2004

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

BY THE COURT:

[1] The reasons for judgment in this appeal were issued on December 3, 2004, reversing the orders of the Divisional Court and the motion judge and substituting an order certifying this action as a class proceeding.

[2] We invited the parties to make written submissions as to costs here and below, to supplement the proposed bills of costs that they had filed when the appeal was argued.

[3] We have now received and reviewed these submissions and would make the following disposition as to costs:

(a) The appellants have been successful throughout. We see no reason why costs should not follow the event in the usual way. Nor do we see any basis to depart from the normal partial indemnity scale. Thus we would order costs to the appellants throughout on this basis.

(b) As to costs in this court and the Divisional Court, we are of the view that, rather than send them to assessment, we should fix them. The present costs regime is based on the principle that this be done wherever possible. This is not an exceptional case requiring assessment.

(c) The costs at first instance are a rather more complicated matter. The certification motion was heard over six days. Numerous affidavits, cross-examinations and voluminous supporting materials were filed. The motion judge, who has considerable experience with certification motions, has a familiarity with the original proceeding that exceeds any we could acquire. We think it appropriate, therefore, to refer the issue of the partial indemnity costs awarded to the plaintiffs back to him and invite him to determine whether they should be fixed or assessed, what the quantum should be if fixed, and how to resolve any ancillary questions raised by the parties such as when these costs ought to be payable.

(d) As to the costs in the Divisional Court and in this court, we see no reason to order that they be in the cause. The appellants were required to appeal if they wished to proceed with this action. Their success in doing so was not contingent on the ultimate outcome of the litigation. The costs we fix should be payable forthwith.

(e) As to quantum, the appellants request $120,503.10 in total in the Divisional Court and $95,074.42 in total in this court. In each case the hearing extended over a second day. The amounts requested properly reflect the reality that as a case moves up the appellate ladder, the issues get refined with the result that the new work required is often reduced. However, in light of the factors in Rule 57, the provisions of s. 31(1) of the Class Proceedings Act and the bedrock principle of reasonableness enunciated in the jurisprudence of this court, we think that the amounts sought are excessive.

(f) Applying these considerations to our task, we would fix the appellants’ costs in the Divisional Court at $60,000 inclusive of disbursements and G.S.T. and in this court at $42,500 inclusive of disbursements and G.S.T. The respondents are to be jointly and severally liable for these amounts.

_ “M. A. Catzman J.A.”

“M.J. Moldaver J.A.”

“S.T. Goudge J.A.”