CITATION: Potter v. The Bank of Canada 2007 ONCA 442

DATE: 20070615

DOCKET: C45056

COURT OF APPEAL FOR ONTARIO

WEILER, GOUDGE AND CRONK JJ.A.

BETWEEN:

A proceeding under the Class Proceedings Act, 1992

ALAN HAY POTTER, KEN WOO, KWONG ENG and JOSEPH ARMAND ALPHONSE BOUCHARD

Plaintiffs (Appellants)

And

THE BANK OF CANADA AND CIBC MELLON TRUST COMPANY

Defendants (Respondents)

Mark Zigler, Ari N. Kaplan and Kirk M. Baert for the appellants

David W. Scott, Q.C. and Markus F. Kremer for the respondent, the Bank of Canada

Heard: December 6, 2006

On appeal from the order of Justice Ellen M. Macdonald of the Superior Court of Justice, dated February 22, 2006, with reasons reported at (2006), 24 E.T.R. (3d) 66.

COSTS ENDORSEMENT

[1] On March 30, 2007, the court released its reasons for judgment in this matter, allowing the appeal in part. As they were invited to do, the parties have filed written submissions on the issue of costs in this court and in the court below, given that result.

[2] After considering those submissions, the court has decided as follows regarding costs.

[3] In the result, success was divided in this court. The appellants succeeded on one of the two major issues and the respondent succeeded on the other. As a consequence, the proper result in the court of first instance was also divided success. The motion seeking to preclude the action from proceeding as a class action should have failed. The motion seeking to strike the claim for direct distribution succeeded, as it is should have.

[4] Given that success was properly divided here and below, we conclude that neither party should pay costs to the other party pursuant to the usual "loser pays" practice.

[5] However, the appellants also claim to recover a portion of their own costs from the fund, arguing that they were acting to protect the interest of the pension plan and have been successful in being allowed to proceed with the action, save for the claim for direct distribution. We agree that this aspect of the appellants' action warrants compensation from the fund since it does seek to advance the interest of the pension plan.

[6] Given that this aspect of the matter was only part of the litigation both here and below, it is our view that those costs should be modest. We would fix them in this court and in the court of first instance in the amount of $15,000 in total in each court, inclusive of disbursements and GST.

[7] By the same logic, the respondent was successful in protecting the fund from the direct distribution claim. It should equally be entitled to recover a portion of its own costs from the fund at first instance and in this court. Again, given that this issue was only one in the overall litigation, we would fix those costs in this court and below in the amount of $15,000 in each court, inclusive of disbursements and GST.

"K.M. Weiler J.A."

"S.T. Goudge J.A."

"E.A. Cronk J.A."