Yola S. Ventresca

The Court of Appeal issued an endorsement regarding costs following an appeal involving a class action.

Due to divided success and the plaintiffs' failure to produce a rational and workable class definition, which contributed to delays and added costs, the court ordered no costs in either the Court of Appeal or the Divisional Court.

The appellant municipalities appealed the certification of two class actions alleging that charitable lottery licensing fees were ultra vires direct taxes.

The appellants argued that the class definition, which included claims dating back to 1990, was overly broad and included presumptively time-barred claims.

The Court of Appeal allowed the appeal in part, modifying the class definition to align with the 15-year ultimate limitation period under the Limitations Act, 2002.

The Court also created a subclass for the presumptively time-barred claims but held that the representative plaintiffs could represent both the main class and the subclass, and that a class proceeding remained the preferable procedure.