ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-4306-00
DATE: 2012 07 13

B E T W E E N:

FOURNIER LEASING COMPANY LTD., CANADIAN AUTO ASSOCIATES LTD. and WESTPORT MOTOR CARS LTD.
Plaintiffs

B. Osler and G. Hotz for the Plaintiffs

• and -

MERCEDES-BENZ CANADA INC., MERCEDES-BENZ USA LLC, and BMW CANADA INC., and THE ATTORNEY GENERAL OF CANADA
Defendants

D. Kent and M. Seers for the Defendants Mercedes-Benz Canada Inc. and Mercedes-Benz USA LLC
A. McKinnon for the Defendant BMW Canada Inc.
B. Brucker and V. Paolone for the Defendant The Attorney General of Canada

Costs Endorsement on Rule 21 Motion

[1] These are my reasons respecting costs of the defendants’ Rule 21 motion in this proposed class proceeding.

[2] The plaintiffs seek partial indemnity costs of $63.865.17, on the basis that they were substantially successful in resisting the defendants’ motion according to my reasons for decision dated May 16, 2012.

[3] The defendants, Mercedes-Benz Canada Inc. and Mercedes-Benz USA LLC seek costs of $38,569.33, while the defendant BMW Canada Inc. claims costs of $32,933.27, all on a partial indemnity basis. The defendants assert that, since a significant part of the plaintiffs’ claim was abandoned during the course of the motion, the defendants would expect to receive their costs under rule 23.05.

[4] It is correct to say that the plaintiffs were substantially successful with respect to the remaining challenges to what became the Fresh Statement of Claim as only the claim for unlawful purpose conspiracy was struck and I concluded that an amendment to the intentional interference claim was warranted (although not for the reasons argued by the defendants).

[5] Nevertheless, the action is significantly different than pleaded at the time the Rule 21 motion was brought. This is the result of the decision by the plaintiffs to abandon the claims of conspiracy and negligence involving the Attorney General (the “AG”), and to dismiss entirely the claims against that party, which decision was made only after the parties had exchanged facta and all defendants had made their arguments on the motion. While counsel for the AG took the lead in argument on these issues, all of the defendants’ facta addressed the question of whether the AG could be party to a civil conspiracy. The effect of the dismissal of the claims against the AG and the amendment of the pleading during the course of the motion was that certain claims of civil conspiracy against the remaining defendants also fell away.

[6] This is a case where success was divided. The plaintiffs made significant changes to their claim, altering the character of the action in response to the Rule 21 motion. Their claim in other respects survived the defendants’ motion, which sought not only to strike certain claims but to dismiss the proceedings entirely for failure to disclose a cause of action.

[7] Given that success on the motion was divided, the appropriate disposition is that neither party should pay costs. Accordingly, there will be no costs of the Rule 21 motion.

K. van Rensburg J.

DATE: July 13, 2012

COURT FILE NO.: CV-10-4306-00
DATE: 2012 07 13

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: FOURNIER LEASING COMPANY LTD., CANADIAN AUTO ASSOCIATES LTD. and WESTPORT MOTOR CARS LTD. Plaintiffs

• and -
  MERCEDES-BENZ CANADA INC., MERCEDES-BENZ USA LLC, and BMW CANADA INC., and THE ATTORNEY GENERAL OF CANADA Defendants

COSTS ENDORSEMENT on RULE 21 MOTION

K. van RENSBURG J .

Released: July 13, 2012