Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2013 ONCA 254

• Judge: Winkler, C.J.O., Weiler and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 03, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 254;(2013), 306 O.A.C. 359 (CA)

Amyotrophic Lateral Sclerosis v. Windsor (2013), 306 O.A.C. 359 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. AP.042

Amyotrophic Lateral Sclerosis Society of Essex County (plaintiff/appellant) v. The Corporation of the City of Windsor (defendant/respondent)

Belle River District Minor Hockey Association Inc., and Essex County Dancers Incorporated (plaintiffs/appellants) v. The Corporation of the Town of Tecumseh (defendant/respondent)

(C56337; C56338; 2013 ONCA 254)

Indexed As: Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City)

Ontario Court of Appeal

Winkler, C.J.O., Weiler and Laskin, JJ.A.

April 25, 2013.

Summary:

Three charitable organizations, who ran lotteries and bingo games, alleged that certain municipal licensing and administrative fees were ultra vires the municipalities. Certification proceedings ensued, with the proposed class consisting of all those persons who paid such fees to the municipalities from 1990 to the present.

The Ontario Superior Court (motions judge), in a decision reported [2011] O.T.C. Uned. 91, certified the proceedings as class actions, but limited the scope of the respective classes to those persons whose claims were not prima facie time barred. The charitable organizations appealed.

The Ontario Divisional Court, in a decision not reported in this series of reports, held that the motions judge erred in law in limiting the size of the respective classes based on the limitations criteria. Other issues were remitted back to the motions judge. As to costs, the court refused to award costs despite the charitable organizations' success, but rather ordered that the costs of the appeals and of the motions for leave to appeal be determined by the motions judge as part of the overall costs of the certification motions. The charitable organizations appealed.

The Ontario Court of Appeal allowed the appeal.

Practice - Topic 8326

Costs - Appeals - Costs of appeal - General principles - A motions judge certified two class actions being pursued by charitable organizations, but limited the scope of the respective classes to those persons whose claims were not prima facie time barred - On appeal, the Ontario Divisional Court held that the motions judge erred in law in limiting the size of the respective classes based on the limitations criteria - Other issues raised were referred back to the motions judge, such that the court refused the ultimate remedy sought - As to costs, the court refused to award costs despite the charitable organizations' success, but rather remitted the issue of costs of the appeals and of the motions for leave to appeal to the motions judge as part of the overall costs of the certification motions - The charitable organizations appealed - The Ontario Court of Appeal allowed the appeal - The Divisional Court erred in principle and its refusal to award costs was plainly wrong.

Cases Noticed:

Lowndes v. Summit Ford Sales Ltd. et al., [2006] O.A.C. Uned. 181 (C.A.), refd to. [para. 9].

Mak v. TD Waterhouse Can. (2005), 198 O.A.C. 92 (Div. Ct.), refd to. [para. 11].

King's Bay Development Corp. v. Cornerstone Custom Homes Ltd. et al. (2009), 255 O.A.C. 36; 2009 ONCA 611 (C.A.), refd to. [para. 11].

Rowlands v. Wright (2009), 250 O.A.C. 394; 2009 ONCA 492, refd to. [para. 11].

Oz Optics Ltd. v. Timbercon Inc. (2011), 285 O.A.C. 232; 343 D.L.R.(4th) 443; 2011 ONCA 714, refd to. [para. 11].

Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc. et al., [2007] O.A.C. Uned. 262; 2007 ONCA 499, refd to. [para. 11].

Tucker et al. v. Cadillac Fairview Corp. (2005), 200 O.A.C. 140 (C.A.), refd to. [para. 11].

Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd. et al. [2009] O.A.C. Uned. 422; 2009 ONCA 638, refd to. [para. 11].

Sharma v. Timminco Ltd., [2012] O.A.C. Uned. 276; 19 C.P.C.(7th) 271; 2012 ONCA 322, refd to. [para. 13].

Authors and Works Noticed:

Brown, Donald J.M., Civil Appeals, looseleaf (2008), para. 6:3250 [para. 10].

Counsel:

Earl A. Cherniak, Q.C., and Peter W. Kryworuk, for the appellants;

Scott C. Hutchison and Brendan Van Niejenhuis, for the respondents.

This appeal was heard on April 3, 2013, before Winkler, C.J.O., Weiler and Laskin, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court, by Weiler, J.A., on April 25, 2013.