SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-06-3257-00
DATE: 2012 11 13

RE: MARVIN NEIL SILVER and CLIFF COHEN
Plaintiffs

• and -

IMAX CORPORATION, RICHARD L. GELFOND,
BRADLEY J. WECHSLER, FRANCIS T. JOYCE, NEIL S. BRAUN,
KENNETH G. COPLAND, GARTH M. GIRVAN, DAVID W. LEEBRON and KATHRYN A. GAMBLE
Defendants

Proceeding under the Class Proceedings Act, 1992

BEFORE: K. van Rensburg J.

COUNSEL:
D. Lascaris, W. Sasso, D. Bach and M. Robb, for the Plaintiffs
P. Steep and D. Peebles, for the Defendants

ENDORSEMENT re: COSTS

[1] This is my decision respecting costs of the two motions that resulted in my reasons for decision dated August 27, 2012.

[2] The central question in the motions was whether the plaintiffs’ statutory claim should be dismissed because of the expiry of the three year limitation period prescribed by the Securities Act. Directly at issue were the effect of the decision of the Court of Appeal in Sharma v. Timminco Ltd., 2010 ONCA 107, and the court’s authority to grant nunc pro tunc relief.

[3] The motions were of course related and the result of the summary judgment motion depended on whether the court would grant the nunc pro tunc order. Class counsel was successful in opposing the defendants’ motion for summary judgment, and in the plaintiffs’ motion to amend the order granting leave nunc pro tunc to pursue the statutory claim.

[4] The plaintiffs seek costs of $41,279.01 consisting of $34,863 in fees, $2,709.34 in disbursements and $3,706.67 in applicable taxes. The costs are claimed on a partial indemnity basis. The plaintiffs’ counsel assert that the general rule that costs follow the event should apply. In support of the amount claimed, they point to the importance of the matters in issue (that would have resulted in a dismissal of the action if the defendants were successful), the complexity of the proceedings, which raised complex and novel legal issues, and the reasonable expectations of the parties as to amount of work and the legal costs that were required to be incurred.

[5] In their submissions, the defendants do not take issue with the amount of costs sought, that is, the time docketed, hourly rates and the disbursements incurred. Rather, the defendants assert that there should be no costs of the motions for three principal reasons, which I address in turn.

[6] First, the defendants argue that no costs should be awarded because the motion resulted from the plaintiffs’ own delay. They point to the plaintiffs’ failure to file an Amended Statement of Claim until months after the reserved decision was released, and that they “missed a 79 day window for filing”. My reasons for decision observed that none of the parties could be faulted for delay in this case. There was no question of “tolling” a limitation period. Whether the plaintiffs had delivered their amended pleading the day after, or within weeks of the release of my decision respecting leave would not have changed the fact that the limitation period relied on by the defendants expired while the decision was under reserve. This is not a case where a party has come to court seeking an indulgence for its own delay or oversight, and for that reason, may be deprived of its costs.

[7] Second, the defendants assert that the plaintiffs should be deprived of their costs because the plaintiffs’ cross-motion was unnecessary. I disagree. The plaintiffs were not only resisting summary judgment on the limitations issue; they were seeking their own relief in the form of a nunc pro tunc order, so that the limitations issue could be addressed and determined on a final basis. Where the plaintiffs were seeking their own relief from the court, it was appropriate that it be requested by way of cross-motion.

[8] Finally, the defendants assert that the time spent by the plaintiffs’ counsel was of limited utility in the end result, and that the plaintiffs were successful, but not by reason of their own arguments. In particular, the defendants refer to the doctrine of actus curiae, which was not originally raised by the plaintiffs’ counsel and the court’s reliance on Rule 26.01, to amend the statement of claim.

[9] I disagree that the motion was decided on grounds not argued by the plaintiffs. It is not unusual for a judge who is deciding a matter to raise a point of law or procedure that counsel may not have addressed; that is what happened in this case. Plaintiffs’ counsel argued the nunc pro tunc authority of the court, while defence counsel asserted that there was no jurisdiction or authority to grant nunc pro tunc relief. After reviewing the case law, I questioned the potential relevance of the actus curiae doctrine, and counsel submitted written argument on the issue. As plaintiffs’ counsel correctly note in their reply submissions on costs, actus curiae is a doctrine which emerges from the nunc pro tunc jurisprudence.

[10] In determining costs it is not the function of the court to weigh the force, thoroughness or effectiveness of the advocacy of counsel on specific points in argument. A party may be deprived of costs where its counsel follows the wrong or unnecessary procedures, wastes the court’s time on unnecessary evidence or succeeds on an entirely different basis than what was presented to the court. I would describe these as cases where parties are successful despite what their counsel have done. This is not such a case. I ultimately accepted the plaintiffs’ arguments with respect to the nunc pro tunc authority of the court, as well as their interpretation of the Timminco decision, and I rejected the defendants’ no less forceful and well-reasoned arguments to the contrary.

[11] I have concluded that there is no reason in this case to depart from the general rule that costs follow the event. Accordingly, the plaintiffs are entitled to their costs as claimed from the defendants to be paid forthwith.

K. van Rensburg J.

DATE: November 13, 2012