Earl Cherniak Q.C. was recently interviewed about a costs
ruling that has been through two levels of appeal so far and is now
the subject of an application for leave to the Supreme Court of
The decision in question is a decision of the Divisional Court
of Ontario which delayed the costs award in an appeal until the
outcome of a class action certification motion. Cherniak says
that decision was highly unusual, and raised an access to justice
issue for the appellants.
"The overwhelmingly common rule is that if you win an
appeal, then you're entitled to the costs, irrespective of what
the final result might be after the matter is remitted to the
original court," explains Cherniak, who is representing the
appellants in Amyotrophic Lateral Sclerosis Society of Essex v.
Windsor (City) – a pair of class action proceedings where
three charities are seeking restitution for licensing and
administration fees charged by municipalities that they allege are
a tax imposed without legislative authority.
"What was surprising was how the Divisional Court dealt
with the costs, which is why, most unusually, the Court of Appeal
granted leave to hear the appeal on costs in the first place,"
The Divisional Court said success on appeal was divided, saying
that the plaintiffs were successful in having the decision of the
motion judge set aside but unsuccessful in obtaining an order
certifying the class proceeding. The court remitted the costs issue
back to the motion judge, to be determined as part of the overall
costs of the certification motions.
In its decision on the costs appeal, the Court of Appeal looked
at whether the Divisional Court erred in refusing to award costs to
the charity class representatives, despite their success on the
substantive issue they appealed, and determined that its refusal to
award costs was "plainly wrong".
"It is not generally appropriate that the appellants carry
the financial burden of their successful appeal from the motion
judge's decision until the conclusion of the certification
motion and potentially until the trial itself," said Justice
The proceeding has since been certified as a class action and
the defendants are seeking leave to appeal the costs decision to
the Supreme Court of Canada.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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