Citation: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONSC 1087
COURT FILE NO.: 00-CV-201162CP
DATE: 20160211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE, HIGH RIVER LIMITED PARTNERSHIP and PHILIP SERVICES CORP. by its receiver and manager, ROBERT CUMMING
Plaintiffs
– and –
DELOITTE & TOUCHE, DELOITTE & TOUCHE LLP, DELOITTE TOUCHE TOHMATSU, DELOITTE TOUCHE TOHMATSU LLP and DELOITTE TOUCHE TOHMATSU f/k/a DELOITTE TOUCHE TOHMATSU INTERNATIONAL
Defendants
COUNSEL:
Thomas J. Dunne, Q.C., John E. Callaghan, and Benjamin Na for the Plaintiffs
Robert C. Heintzman, Michael D. Schafler and Mark G. Evans for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] On December 10, 2015, I granted the Defendants, collectively known as Deloitte, a partial summary judgment. See Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2015 ONSC 7695.
[2] I invited the parties to make written submissions about costs. I alerted the parties that my preliminary view was that the costs of Deloitte’s partial summary judgment motion should be in the cause.
[3] The parties agreed on the quantum of costs ($700,000 plus disbursements of $25,000 and applicable taxes), but they could not agree on the timing of the payment.
[4] Relying on Passarelli v. Starek, 2007 CanLII 343 (Ont. S.C.J.), Farr Lumber Ltd. v. TruServ Canada Inc., 2010 ONSC 2722, affd [2010 ONCA 489](https://www.canlii.org/en/on/onca/doc/2010/2010onca489/2010onca489.html); Martin v. Attard Plumbing Ltd., [2015 ONSC 5998](https://www.minicounsel.ca/scj/2015/5998); and J.I.L.M. v. Intact Insurance, [2013 ONSC 1850](https://www.minicounsel.ca/scj/2013/1850), Deloitte submitted that the costs should be paid to them forthwith because they were successful in having one of CIBCs two discrete causes of action, i.e., the auditor’s negligence action, dismissed.
[5] In the alternative, Deloitte submitted that if the court remained inclined to award costs in the cause, then the costs order should make clear that the referable cause is the cause of CIBC and High River Limited Partnership and not in the cause of the action brought by the co-Plaintiff, Philip Services Corp., by its receiver and manager, Robert Cumming, whose action was consolidated with CIBC’s action.
[6] In its written submissions, CIBC requests that the costs be in the cause of the consolidated action or in the cause of the CIBC action.
[7] I agree with Deloitte’s submission that “in the cause” refers to CIBC’s ongoing action against Deloitte and not in the cause of the receiver in the consolidated action against Deloitte. The partial summary judgment motion did not involve the claim of the receiver and manager and I see no reason to encumber the receiver’s cause of action with a $700,000 costs in the cause order.
[8] I agree with Deloitte that there would be no error in principle in ordering CIBC to pay costs within 30 days, but there would also be no error in principle to simply order costs in the cause of CIBC’s action.
[9] In my view, this is an appropriate case for costs in the cause of the CIBC action against Deloitte. The trial is imminent, and the trial judge will be in the best position to determine how the liability for costs should be allocated.
[10] Order accordingly.
Perell, J.
Released: February 11, 2016
CITATION: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONSC 1087
COURT FILE NO.: 00-CV-201162CP
DATE: 20160211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE, HIGH RIVER LIMITED PARTNERSHIP and PHILIP SERVICES CORP. by its receiver and manager, ROBERT CUMMING
Plaintiffs
– and –
DELOITTE & TOUCHE, DELOITTE & TOUCHE LLP, DELOITTE TOUCHE TOHMATSU, DELOITTE TOUCHE TOHMATSU LLP and DELOITTE TOUCHE TOHMATSU f/k/a DELOITTE TOUCHE TOHMATSU INTERNATIONAL
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: February 11, 2016