Court File and Parties

CITATION: Tolhurst v. Rolf C. Hagen Inc., 2026 ONSC 2678

COURT FILE NO.: CV-18-00597981-00CP

DATE: 20260505

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PATRYCIA TOLHURST and WESLEY JORDAN, Plaintiffs

– AND –

ROLF C. HAGEN INC., Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Ryan Kornblum, for the Plaintiffs Jeffrey E. Goodman, for the Defendant

HEARD: Cost submissions in writing

COSTS ENDORSEMENT

[1] The Defendant was successful in its motion to have this proposed class action dismissed for delay pursuant to s. 29.1 (1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”): Tolhurst v. Rolf C. Hagen Inc., 2026 ONSC 1757. It seeks costs on a partial indemnity basis in the all-inclusive amount of $42,792.31.

[2] The motion was hard fought on both sides. Considering the complexity and amount of effort that went into the matter, the Defendant’s request is on its face a relatively modest one. There was a considerable amount at stake in the motion given that this was a class action with substantial potential exposure for the Defendant.

[3] I am not inclined to examine the time spent by Defendant’s counsel under a microscope. The global amount requested is not excessive for this type of motion, and counsel obviously invested the time and effort that it took to be successful in an important motion for their client.

[4] Plaintiffs’ counsel also put considerable time and effort into the motion. Their documentation was thorough and it was obvious at the hearing that they treated the matter seriously and had prepared well. Unfortunately for the Plaintiff, the time limitation in s. 29.1 leaves little room for the court’s discretion, and so the Plaintiff was ultimately unsuccessful in the motion despite their lawyer’s laudable efforts.

[5] The primary argument put forward by Plaintiffs’ counsel is that they are not experienced in class actions and were unaware of the limitation imposed when section 29.1 (1) was enacted in October 2020. In their written submissions they point out that even Defendant’s counsel, who are more experienced in class actions, did not alert them to the section 29.1 rule until three years after it came into force.

[6] I sympathize with Plaintiffs’ counsel. Their handling of the case was otherwise capable and conscientious. Section 29.1 did introduce a significant change in the time limits imposed on class proceedings, and a lawyer who is not ordinarily involved in that area of practice might well not be aware of it.

[7] Having said that, I will observe that, with the greatest of respect, it is not for the Defendant’s lawyer to advise the Plaintiffs’ lawyer of the time limitations under which a Plaintiff must operate. The oversight was Plaintiff’s lawyers’ alone, and they must own it.

[8] I am prepared to round the Defendant’s request down a small amount in order to reflect the fact that its success on the motion was not on the merits but rather on a new and strict time limitation. The Plaintiffs shall pay the Defendant costs in the amount of $40,000, inclusive of all fees, disbursements, and HST.

Morgan J.

Date: May 5, 2026