10.29: General rule for payment of litigation costs
10.32: Costs in class proceeding

Case Summary

Two Defendants in the underlying class action proceeding sought an Order granting Costs at five times the rate set out in Schedule 5 Column C of the Rules following a previous ruling approving the settlement agreement entered into by the parties. The Respondents were two class members who had unsuccessfully raised objections to the settlement agreement based on concerns that the overly broad release provisions therein were prejudicial to certain members of the multijurisdictional class proceeding. However, Courts in five different provinces had approved the settlement agreement by the time this Application was heard.

The Respondents raised several arguments in opposing the imposition of Costs at such an elevated rate. The Respondents argued that since approval of the settlement agreement was required by section 35 of the Class Proceedings Act, SA 2003, c C-16.5 (the “CPA”), the default principle that Costs should be awarded to the successful party should not apply. Second, the Respondents posited that the Applicants’ inordinate delay in bringing the Application precluded such an inflation of the Column 5 Costs. Finally, the Respondents argued that the issues raised concerned access to justice and were in the public interest, and therefore the quantum of Costs sought were unreasonable.

Ultimately, His Lordship was not satisfied that the requirement for approval of the settlement agreement in section 35 of the CPA trumped Rule 10.29, which supports the principle that a successful party is presumptively entitled to Costs. In rejecting the delay argument, the Court found that consideration for the nature of multijurisdictional proceedings must be made. In that vein, not only did the multijurisdictional nature of the Action justify the Applicants’ delay, but the Court found that such delay was not caused by the Applicants, and did not prejudice the Respondents. His Lordship also found that the broad nature of the release terms in the settlement did not concern the public interest to such a degree that Rule 10.29 did not apply.

The Court addressed Rule 10.32(3)(b) to consider the quantum of Costs sought by the Applicants. In doing so, Associate Chief Justice Rooke noted that the Application was not overly complex, which did not support an increase of the tariff rate. However, the amount of the $45 million dollar claim did significantly exceed the amount provided for in Column 5, which militated in favour of increased Costs. Likewise, the conduct of the Respondents in raising Appeals and objections to the Costs amount in multiple Provinces, as well as seeking leave to Appeal to the Supreme Court caused significant delay, and warranted an increase of the Column 5 rate. Accordingly, His Lordship balanced these factors and granted Costs at 3 times the Column 5 rate.

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