Court of Appeal for Ontario

Date: 2025-05-29
Docket: COA-23-CV-1180
Panel: Fairburn A.C.J.O., Coroza and Sossin JJ.A.

Between

Patricia North and Dinis Rego
Appellants (Plaintiffs/Respondents by way of cross-appeal)

and

Bayerische Motoren Werke AG, BMW of North America, LLC and BMW Canada INC.
Respondents (Defendants/Appellants by way of cross-appeal)

On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated October 5, 2023, with reasons reported at 2023 ONSC 5244.

Costs Endorsement

[1] This court dismissed the appeal, allowed the cross-appeal and set aside the partial certification order. Given that conclusion, this court also set aside the costs disposition and invited the parties to file submissions on costs of the motion below.

[2] We have now reviewed those submissions.

[3] The appellants (respondents by way of cross-appeal) say that a fair and reasonable costs award falls in the range of $125,000 to $150,000, all inclusive, which is in line with comparable cases. They submit that the complexity of the certification motion was at the lower end of the scale and that, even though it was unsuccessful, the motion was reasonable based on a novel property damage issue. They also point to the respondents’ last-minute disclosure about a lower-cost alternative for repairing the vehicles in question, which “fundamentally impacted the pleading” and introduced “novelty and complexity” into the case. The appellants have declined to reveal their own costs.

[4] The respondents (appellants by way of cross-appeal), who were successful in having the certification order set aside, seek an award in the amount of $232,005.93, all inclusive. They submit that this amount is fair and reasonable based on the amount claimed in the action ($1 billion in general and special damages and $100 million in punitive damages), the complexity of the proceeding, the importance of the issues, and the reasonable expectations of the parties. In their submission, this amount of costs is at the low-end of the range of typical cost awards following a three-day class action certification motion.

[5] Having reviewed and considered the respondents’ bill of costs, relevant case law and submissions of the parties, we award partial indemnity costs of the motion below in the amount of $190,000, all inclusive, payable forthwith. In our view, this amount is fair and reasonable in the circumstances, including the complexity of the certification motion, the amount at issue, the importance and novelty of the issues, and the amounts awarded in similar certification cases.

“Fairburn A.C.J.O.”
“S. Coroza J.A.”
“L. Sossin J.A.”