In its recent decision in Mancinelli v Royal Bank of Canada, 2018 ONSC 797, the Ontario Superior Court of Justice awarded costs on a partial indemnity basis to two sets of defendants who successfully resisted a motion to join them to a class proceeding.
In this decision, Justice Perell found that the two sets of defendants were the successful parties on “a very significant and vigorously contested motion”. As such, the normal rule and expectation of successful parties receiving their costs on a partial indemnity basis should apply.
While the plaintiff argued that there was no basis for a costs award since the case was novel, Justice Perell found that in this case, there was adequate case law to decide the joinder issue and there was no novelty in the sense that would justify departing from the expected costs order. Indeed, Justice Perell noted that for a case to be novel, it is not enough that the issue us unprecedented or has not been decided before. Rather, “the legally significant novelty of a legal issue is found in the circumstance that the existing case law is inadequate to resolve the issue and there would be no proper reason for the party advancing the issue to expect to fail.”
This decision serves as a reminder that courts are willing to award costs to defendants, even in the context of a class proceeding, where the normal course is to expect a costs award. In this instance, it was clear based on the plaintiff’s own costs submissions – which essentially mirrored the amount claimed by the defendants – that there was no reason to reduce the claim for partial indemnity costs sought by the defendants.
