COURT OF APPEAL FOR ONTARIO

CITATION: Holley v. Northern Trust Company, Canada, 2014 ONCA 857

DATE: 20141201

DOCKET: C58493

Strathy C.J.O, Rouleau and Hourigan JJ.A.

BETWEEN

Jennifer Holley

Appellant (Plaintiff)

and

The Northern Trust Company, Canada and

The Royal Trust Company

Respondent (Defendant)

Joel Rochon, for the appellant

Jeff Galway, for the respondent The Northern Trust Company, Canada

Christine Lonsdale, for the respondent The Royal Trust Company

Heard: October 6, 2014

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated February 11, 2014, with reasons reported at 2014 ONSC 889.

COSTS ENDORSEMENT

[1] By reasons issued October 31, 2014, we dismissed the appellant’s appeal on the basis that the proposed class action was statute-barred. The respondent Northern Trust Company, Canada seeks costs in the amount of $36,966.55 and the respondent Royal Trust Company seeks costs in the amount of $25,000. Both are inclusive of disbursements and applicable taxes.

[2] The appellant submits that there should be no order as to costs. In the appellant’s submissions, no costs should be ordered as the class action was brought in the public interest and raised a new point of law, thus engaging the provisions of s. 31(1) of the Class Proceedings Act, 1991. The appellant further argues that the appeal was reasonably brought and that it was founded on improper conduct by the respondents in their administration of trust assets. Taking these factors into account, it is appropriate that no costs be awarded. In any event, the appeal was relatively straight forward and this lends further support to her submission that costs as sought by the respondents are unwarranted.

[3] In our view, costs should follow the event. In his reasons on costs in the decision under appeal, Perell J. dealt with and rejected the appellant’s submission that s. 31(1) of the Class Proceedings Act had been engaged. He ordered costs in the ordinary course. We reach the same conclusion.

[4] The respondents had to deal with all of the issues raised by the appellant in her appeal. The amounts involved were significant and the time devoted by the respondents was warranted. In our view, the amount of costs being sought by the respondents is reasonable.

[5] As to the appellant’s submission that the alleged improper conduct of the respondents justified bringing the claim and should result in a cost sanction, we disagree. This court made no finding of improper conduct. The appeal was dismissed strictly on the basis that the claim was statute-barred.

[6] As a result, we award the respondent Northern Trust Company, Canada their costs in the amount of $36,966.55 and the respondent Royal Trust Company their costs in the amount of $25,000. These sums are inclusive of disbursements and applicable taxes.

“G.R. Strathy C.J.O.”

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”