Following a prior Decision addressing the allocation of legal fees in a class action proceeding (the “Costs Decision”), several parties applied for Costs incurred in connection with that proceeding (referred to as the “Costs Application”). The parties seeking Costs included the Docken NSC Group (“Docken”), Guardian Law (“Guardian”), Merchant Law (“Merchant”) and the Churko NSC Group (“Churko”). Each sought Costs against one or more other parties, in some cases on a joint and several basis.

The Court applied Rule 10.31(1), which requires that a costs award be guided by the factors listed in Rule 10.33. Justice Sidnell identified Rule 10.33(1)(a) (the result of the Action and the degree of success of each party), Rule 10.33(1)(b) (the amount claimed and recovered), Rule 10.33(1)(c) (the complexity of the Action), and Rule 10.33(1)(g) (any other relevant matter) as most applicable. While some parties were allocated a portion of the legal fees in the earlier Decision, success was limited and mixed. For example, the internal dispute between Churko and Docken remained unresolved and was not properly before the Court. Guardian was partially successful in being recognized as class counsel but was not successful in its claim for an increased allocation of fees.

Justice Sidnell also found that, while the Costs Application was not legally complex, it became unnecessarily protracted due to a series of procedural and evidentiary disputes. These included objections to Affidavits, failure to provide timely availability for scheduling, and late or ineffective attempts to rely on unfiled or unverified documents. These actions contributed to delays and lengthened the proceeding unnecessarily.

The Court also considered Rule 10.33(2). Under Rule 10.33(2)(a), Justice Sidnell found that several parties had taken steps that prolonged the proceeding without contributing meaningfully to its resolution. Under Rule 10.33(2)(f), the Court noted that counsel for Docken failed to comply with an Undertaking to file supporting evidence. Under Rule 10.33(2)(h), the Court declined to give any weight to formal settlement offers that were served only after the Costs Decision had been issued, finding them premature and ineffective.

Given the contentious nature of the Costs Application, the number of unnecessary or unsuccessful procedural steps taken, and the limited success achieved by all parties, the Court found that no party was entitled to Costs. All parties were directed to bear their own Costs and disbursements related to the Costs Application.