COURT OF APPEAL FOR ONTARIO
Windsor (City), 2015 ONCA 867
DATE: 20151209
DOCKET: C59525 & C59526
Strathy C.J.O., LaForme and Tulloch JJ.A.
DOCKET: C59525
BETWEEN
Amyotrophic Lateral Sclerosis Society of Essex County
Plaintiff (Respondent)
and
The Corporation of the City of Windsor
Defendant (Appellant)
DOCKET: C59526
BETWEEN
Belle River District Minor Hockey Association Inc. and Essex County Dancers Incorporated
Plaintiffs (Respondents)
and
The Corporation of the Town of Tecumseh
Defendant (Appellant)
Scott Hutchison, for appellant City of Windsor
Brendan van Niejenhuis, for the appellant Town of Tecumseh
Peter W. Kryworuk and Yola S. Ventresca, for the respondents
Heard: By written submissions
On appeal from the orders of the Divisional Court (Justices James C. Kent, Clayton Conlan and Michael N. Varpio), dated April 28, 2014.
ENDORSEMENT RE. COSTS
[1] Having considered the parties’ submissions with respect to the costs in the Divisional Court, it is our view that the appropriate order is no order as to costs in either this court or the Divisional Court.
[2] This reflects the divided success of the appeal process. It also recognizes that it was for the plaintiffs (respondents), not for the defendants (appellants) or the court, to produce a rational and workable class definition. The plaintiffs’ definition was arbitrary and, as we noted in our reasons, it resulted in common issues that were not common. The failure of the plaintiff to address this at the outset, or to amend the class definition when it had opportunities to do so, has contributed to the delay in moving this action forward and has added to the costs at all levels.
[3] Order accordingly.
“G.R. Strathy C.J.O.”
“H.S. LaForme J.A.”
“M. Tulloch J.A.”