Will A Big Cost Award In A Securities Class Action Change Reasonable Expectations For All?

Justice Strathy, now the Chief Justice of Ontario, recently awarded plaintiffs more than $2.679 million in costs for their motion for certification and leave under section 138.8 of the Ontario Securities Act. While the plaintiffs likely consider the award a big win, the decision has the potential to increase costs awards in the future for defendants and plaintiffs alike.

In Green v. CIBC, Justice Strathy sat as a judge ex officio of the Superior Court of Justice as he had heard some of the earlier proceedings before he was elevated to the Court of Appeal.

The Certification and Leave Motion

To recap, Justice Strathy heard the plaintiffs' motion in 2012 and dismissed it as time-barred because leave to commence an action had not been obtained prior to the expiry of the limitation period. The Court of Appeal reversed this decision, and held that the statutory cause of action could be certified. That decision was recently affirmed by the Supreme Court of Canada.