Conduct of defendants in dealings with plaintiffs was shabby and high-handed

COSTS

Conduct of defendants in dealings with plaintiffs was shabby and high-handed

Defendants sought costs. Action was certified as class proceeding. Plaintiff class consisted of 171 AO pilots and defendant class consisted of 1,617 AC pilots. Plaintiffs alleged that members of defendant class committed torts of conspiracy, intentional interference with economic interests and negligent misrepresentation. They alleged that defendant class owed fiduciary duty to members of plaintiff class, which was breached. Defendants were successful in resisting action. Defendants sought costs of $1.5 million. Application dismissed. This was not test case and it did not involve matter of public interest. Procedural nature of action was unique and action engaged some novel points of law. However, it could not be said that action raised novel point of law for purposes of invoking application of s. 31(1) of Class Proceedings Act, 1992 (Ont.). Award that defendants bear own costs was fair and reasonable in circumstances of case. Defendants were successful and made offers to settle, but their conduct in dealings with plaintiffs was shabby and high-handed. Defendants did not deserve costs award in their favour. Fair and reasonable disposition was for defendants to bear own costs.

Berry v. Pulley (Sep. 3, 2013, Ont. S.C.J., Pepall J., File No. 97-CV-135179 CP) Additional reasons to 218 A.C.W.S. (3d) 993. 232 A.C.W.S. (3d) 46.