Executive Summary: Key Legal and Evidentiary Issues

• The respondent’s complete success on appeal regarding certification as a class proceeding and leave under the Securities Act was central.

• Costs entitlement for both the Divisional Court motion and Court of Appeal proceedings was contested.

• The respondent requested $20,000 for the Divisional Court motion and $50,000 for each of two appeals, totaling $120,000.

• The court determined the appeals were inextricably bound together and did not warrant separate costs for each.

• Costs were fixed at $50,000 for the appeals and $20,000 for the Divisional Court motion, totaling $70,000.

• Judicial discretion guided the allocation and fixing of costs in light of the respondent’s success.

Facts of the case

Terry Longair Professional Corporation was the plaintiff (respondent) in proceedings against Akumin Inc., Riadh Zine-El-Abidine, Mohammad Saleem, Thomas Davies, Stan Dunford, Murray Lee, James Webb, and Ernst & Young LLP, who were the defendants (appellants). The case was heard by the Court of Appeal for Ontario, with Copeland, Monahan, and Rahman JJ.A. presiding. The appeal was from the order of Justice Jasmine T. Akbarali of the Superior Court of Justice, dated June 26, 2024, with reasons at 2024 ONSC 3675.

Procedural history and costs submissions

The respondent was entirely successful on the appeal from the order certifying the action as a class proceeding pursuant to s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6, as well as from the order granting leave to proceed under s. 138.3(1) of the Securities Act, R.S.O. 1990, c. S.5. The respondent sought costs of $20,000 for the motion for leave to appeal heard by the Divisional Court, plus $50,000 for each of the two appeals to the Court of Appeal, for a total costs award of $120,000 all-inclusive.

The Divisional Court had fixed costs for the motion for leave to appeal at $20,000, inclusive, payable in the discretion of the appeal panel. The Court of Appeal found it appropriate that the costs for the leave to appeal motion in the Divisional Court be paid by the appellants, given the respondent’s success on the subsequent appeals.

Court’s analysis and decision on costs

Although there were technically two appeals heard by the Court of Appeal, the court found that the issues and arguments of the appeals were inextricably bound up together in substance. As a result, the court did not agree with awarding $50,000 for each appeal. Instead, the court awarded costs of $50,000 for the appeals to the Court of Appeal and $20,000 for the leave to appeal in the Divisional Court, for a total costs award of $70,000, all-inclusive.

Ruling and outcome

The Court of Appeal for Ontario awarded the respondent, Terry Longair Professional Corporation, a total of $70,000 in costs: $20,000 for the Divisional Court motion for leave to appeal and $50,000 for the appeals to the Court of Appeal. The successful party was Terry Longair Professional Corporation, and the total amount ordered in its favor for costs was $70,000, all-inclusive. If the exact amount for costs and monetary award cannot be determined beyond this, it is not indicated in the document.