COURT OF APPEAL FOR ONTARIO

CITATION: Sharma v. Timminco Limited, 2012 ONCA 322

DATE: 20120516

DOCKET: C53624, C53642 and C53644

Goudge, Armstrong and Lang JJ.A.

BETWEEN

Ravinder Kumar Sharma

Plaintiff (Respondent)

and

Timminco Limited, Photon Consulting LLC, Rogol Energy Consulting LLC, Michael Rogol, Dr. Heinz Schimmelbusch, Robert Dietrich, René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield, Mickey M. Yaksich and John P. Walsh

Defendants (Appellants)

Proceedings under the Class Proceedings Act, 1992

Alan L.W. D’Silva, Daniel S. Murdoch and Lesley Mercer, for the appellants Timminco Limited, Dr. Heinz Schimmelbusch, Robert Dietrich, René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield and Mickey M. Yaksich

Paul Le Vay and Brendan Van Niejenhuis, for the appellant Photon Consulting LLC

Derek J. Bell, for the appellant John P. Walsh

Michael C. Spencer, Won J. Kim and Victoria Paris, for the respondent

Heard: November 2, 2011

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated March 31, 2011, with reasons reported at 2011 ONSC 2040.

COSTS ENDORSEMENT

[1] We have received written submissions from the three appellants and the respondents in this matter concerning the disposition of costs in this court and on the motion below. We have reviewed them all and considered the various issues raised by them.

[2] The result of the appeal is that the appellants succeed on the limitation issue, having failed below. This was the only issue on appeal. The issue concerning the substitution of a representative plaintiff raised below was not before this court. In our view, the costs disposition below reflects the judgment of an experienced class action judge that costs before him ought to await the result of the action. Having reversed only a part, albeit a major part of his order, we see no reason to depart from the philosophy he adopted concerning costs. We would therefore not alter the costs disposition below. Costs of the motion ought to remain in the cause.

[3] As to the costs of the appeal, we consider the appellants’ success as being an important consideration. The costs order of the appeal should reflect this in some measure.

[4] We also consider of relevance the fact that the appeal raised a novel issue of law. This invites some modification of the costs order that might otherwise be made.

[5] Finally we consider of relevance the fact that this is a class action where access to justice is an important policy underpinning. Costs orders in our view, should take account of that, to some extent.

[6] However, we see merit in the approach adopted by the motion judge to the costs before him. Success in the ultimate proceedings should in this circumstance serve as the ultimate determining factor for the payment of costs.

[7] In the result, we order that the Timminco appellants and the Photon Consulting appellants each be awarded $20,000 costs in the cause, inclusive of disbursements and applicable taxes. We further order that the Walsh appellant receive costs in the amount of $10,000 in the cause, inclusive of disbursements and applicable taxes.

“S.T. Goudge J.A.”

“Robert P. Armstrong J.A.”

“S.E. Lang J.A.”