DeWolf v. Bell ExpressVu Inc.

DeWolf v. Bell ExpressVu Inc.

The court held that s.31 factors did not apply because the matter involved a straightforward application of Garland to the facts rather than novel or public interest questions; accordingly costs were awarded but reduced as the appeal was short and not overly complex, fixing appeal costs at $55,000 and action costs at $125,000, both inclusive of GST and disbursements.

Citation
2009 ONCA 765
Parties
Respondent (plaintiff): Peter DeWolf; Appellants (defendants): Bell ExpressVu Inc. and Bell ExpressVu L.P.; Intervener (funder): Law Foundation of Ontario
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
4 November 2009
Procedural Posture
Civil Class Action / Appeal (costs Endorsement Following Allowance of Appeal and Dismissal of Claim)
Outcome
Appeals allowed; motion judge's order granting summary judgment for respondent set aside and substituted with dismissal of respondent's claim; costs awarded to appellants in fixed amounts.
Legal Topics
Summary Judgment, Class Proceedings Act S.31, Cost Awards, Test Case, Application of Precedent
Source Language
English
Civil Class Actions Costs Summary Judgment Class Proceedings Act S.31 Cost Awards Test Case Application of Precedent

Case Brief

Summary, issues, holding and outcome

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Parties

Peter DeWolf

Respondent (plaintiff)

Bell ExpressVu Inc. and Bell ExpressVu L.P.

Appellants (defendants)

Law Foundation of Ontario

Intervener (funder)

Procedural Posture

Civil Class Action / Appeal (costs Endorsement Following Allowance of Appeal and Dismissal of Claim)

Legal Issues

  1. 1 Whether s.31 of the Class Proceedings Act bars or limits an award of costs because the action was a test case raising novel or public interest issues
  2. 2 Whether the amounts claimed by the appellants for costs were reasonable and should be reduced
  3. 3 What quantum of costs is appropriate following allowance of the appellants' appeals and dismissal of the respondent's claim

Ratio Decidendi

The court held that s.31 factors did not apply because the matter involved a straightforward application of Garland to the facts rather than novel or public interest questions; accordingly costs were awarded but reduced as the appeal was short and not overly complex, fixing appeal costs at $55,000 and action costs at $125,000, both inclusive of GST and disbursements.

Court Disposition

Appeals allowed; motion judge's order granting summary judgment for respondent set aside and substituted with dismissal of respondent's claim; costs awarded to appellants in fixed amounts.

Orders

  • Costs of the appeal, including the motion for leave to appeal, fixed at $55,000 inclusive of GST and disbursements.
  • Costs of the action, including the summary judgment motion but excluding the certification motion, fixed at $125,000 inclusive of GST and disbursements.