SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-08-362807-CP

DATE: 20140716

RE: MICHAEL CANNON / Plaintiff

AND

FUNDS FOR CANADA FOUNDATION, MATT GLEESON AND SARAH STANBRIDGE as trustees for the DONATIONS CANADA FINANCIAL TRUST, PARKLANE FINANCIAL GROUP LIMITED, TRAFALGAR ASSOCIATES LIMITED, TRAFALGAR TRADING LIMITED, APPLEBY SERVICES (BERMUDA) LTD. as trustee for the BERMUDA LONGTAIL TRUST, EDWIN C. HARRIS Q.C., PATTERSON PALMER also known as PATTERSON PALMER LAW, PATTERSON KITZ (Halifax), PATTERSON KITZ (Truro), MCINNES COOPER, SAM ALBANESE, KEN FORD, RIYAD MOHAMMED, DAVID RABY, GREG WADE, GLEESON MANAGEMENT ASSOCIATES INC., MARY-LOU GLEESON, MATT GLEESON and MARTIN P. GLEESON / Defendants

AND

GACICH FINANCIAL ENTERPRISES INC., TAD GACICH, LIFE PLANNING LTD., LORNE ALLEN, et al / Third Party Defendants

Proceeding under the Class Proceedings Act, 1992

BEFORE: Justice Edward P. Belobaba

COUNSEL:
Peter Jervis and Remissa Hirji for Certain Third Parties / Moving Parties

Andrew Lewis and Samuel S. Marr for the Plaintiff / Responding Party

Stephanie Sugar for the ParkLane Defendants / observing

Brad Berg for the Bermuda Defendants / observing

Clarke Tedesco for the CMB Third Parties / observing

HEARD: April 9, 2014

COSTS AWARD ON ‘OPT BACK IN’ MOTION

[1] In a decision released on April 22, 2014, I dismissed a motion brought by four donor-distributors, Patricia Orser, Lorne and Regina Allen, and Errol Patterson, (“the Four DDs”) to opt back in to the class proceeding. I concluded that “opting out does not mean wait and see” and that the Four DDs could opt back in in limited circumstances, none of which were established here.

[2] I have now reviewed the costs submissions. The plaintiff asks for $28,893 all-inclusive on a partial indemnity basis. The Four DDs say that the costs award should be no more than $2500. In my view, neither submission is reasonable.

[3] The motion to opt back in was, to say the least, misguided. Given the case law, the outcome was predictable. Counsel for the plaintiff tried to persuade the other side that their motion was “entirely without merit” and offered to settle the matter without costs, but the warning was not heeded.

[4] The legal issues were relatively straight-forward and took almost no time to argue but the plaintiff still had to deal with and respond to an incomplete motion record with credibility problems in one of the affidavits. A significant amount of legal work had to be done.

[5] In my view, having considered the factors set out in Rule 57.01(1) and the Court of Appeal’s admonition in Boucher that the costs awarded should be fair and reasonable to the unsuccessful party,[^1] I am satisfied that costs should be fixed at $10,000 all-inclusive, payable by the four donor-distributors to the plaintiff within 30 days.

Belobaba J.

Date: July 16, 2014

[^1]: Boucher v. Public Accountants Council of Ontario, (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 26.