



COURT OF APPEAL FOR ONTARIO

CITATION:
Sharma v. Timminco
    Limited, 2012 ONCA 322

DATE: 20120516

DOCKET: C53624, C53642 and C53644

Goudge, Armstrong and Lang JJ.A.

BETWEEN

Ravinder Kumar Sharma

Plaintiff (Respondent)

and

Timminco Limited, Photon Consulting LLC, Rogol
    Energy Consulting LLC, Michael Rogol, Dr. Heinz Schimmelbusch, Robert Dietrich,
    René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D.
    Winfield, Mickey M. Yaksich and John P. Walsh

Defendants (Appellants)

Proceedings under the
Class
    Proceedings Act, 1992

Alan L.W. DSilva, Daniel S. Murdoch and Lesley Mercer,
    for the appellants Timminco Limited, Dr. Heinz Schimmelbusch, Robert Dietrich,
    René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D.
    Winfield and Mickey M. Yaksich

Paul Le Vay and Brendan Van Niejenhuis, for the
    appellant Photon Consulting LLC

Derek J. Bell, for the appellant John P. Walsh

Michael C. Spencer, Won J. Kim and Victoria Paris, for
    the respondent

Heard: November 2, 2011

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated March 31, 2011, with reasons reported at 2011
    ONSC 2040.

COSTS ENDORSEMENT

[1]

We have received written submissions from the three appellants
    and the respondents in this matter concerning the disposition of costs in this
    court and on the motion below.  We have reviewed them all and considered the
    various issues raised by them.

[2]

The result of the appeal is that the appellants succeed on the
    limitation issue, having failed below.  This was the only issue on appeal.  The
    issue concerning the substitution of a representative plaintiff raised below
    was not before this court.  In our view, the costs disposition below reflects
    the judgment of an experienced class action judge that costs before him ought
    to await the result of the action.  Having reversed only a part, albeit a major
    part of his order, we see no reason to depart from the philosophy he adopted
    concerning costs.  We would therefore not alter the costs disposition below. 
    Costs of the motion ought to remain in the cause.

[3]

As to the costs of the appeal, we consider the appellants
    success as being an important consideration.  The costs order of the appeal
    should reflect this in some measure.

[4]

We also consider of relevance the fact that the appeal raised a
    novel issue of law.  This invites some modification of the costs order that
    might otherwise be made.

[5]

Finally we consider of relevance the fact that this is a class
    action where access to justice is an important policy underpinning.  Costs
    orders in our view, should take account of that, to some extent.

[6]

However, we see merit in the approach adopted by the motion judge
    to the costs before him.  Success in the ultimate proceedings should in this
    circumstance serve as the ultimate determining factor for the payment of costs.

[7]

In the result, we order that the Timminco appellants and the Photon
    Consulting appellants each be awarded $20,000 costs in the cause, inclusive of
    disbursements and applicable taxes.  We further order that the Walsh appellant
    receive costs in the amount of $10,000 in the cause, inclusive of disbursements
    and applicable taxes.

S.T. Goudge J.A.

Robert P. Armstrong J.A.

S.E. Lang J.A.


