The Ontario Superior Court has awarded the plaintiffs in Green v. CIBC over $2.6 million in costs and disbursements, with plaintiffs' counsel receiving over $1.5 million in costs on a partial indemnity basis. Chief Justice Strathy (sitting in the Superior Court ex officio as the case management judge) held that the award was fair and reasonable considering the extraordinary nature of the case.
The case was one of the first class actions for secondary market misrepresentation brought under new provisions in the Ontario Securities Act, which require that leave be granted to bring a claim. Along with two other cases, the issue of whether leave needed to be obtained prior to the expiry of the statutory limitation (to which discoverability does not apply) was appealed to the Supreme Court, where the Court held that leave must be obtained before the expiry of the limitation, but that in special circumstances, which a majority found were present in Green, leave could be granted nunc pro tunc.
The defendants argued that the novelty of the legal issues and the fact that leave was only granted nunc pro tunc meant that the Court should not award such substantial costs. However, Justice Strathy found the key issue was access to justice, and that without an incentive for experienced class counsel to take on such a case, plaintiffs would not have access to the statutory remedy.
This decision is notable for issuers, as it increases the stakes in the already high-stakes business of defending secondary market misrepresentation class actions, notably in contesting leave and certification motions.