As Aboriginal people plaintiffs were exempt from paying HST so not appropriate to order HST as part of costs

Ontario civil | Civil Practice and Procedure | Class and representative proceedings | Representative or class proceedings under class proceedings legislation

Plaintiffs were two Aboriginal individuals who purported to represent approximately 25,000 members of six First Nations that made up particular confederacy. Defendants were several individuals and organizations involved in proposed development projects on confederacy land. Plaintiffs alleged defendants essentially acted with view to diverting funds belonging to confederacy. Plaintiffs brought proposed class proceeding against defendants for relief for breach of contract, breach of fiduciary duty, conspiracy, conversion, unjust enrichment, breach of trust, knowing assistance of breach of trust, knowing receipt of trust funds, and fraudulent and negligent misrepresentation. Plaintiffs brought motion for leave to amend statement of claim. Motion was granted in part. Issue arose as to costs. Defendants were ordered to pay plaintiffs fixed costs of $15,500.00 which included disbursements. As successful party plaintiffs were entitled to costs. As Aboriginal people plaintiffs were exempt from paying HST so it would not be appropriate to order HST as part of costs. Plaintiffs also asserted they would make every effort to claim exemption. Appearance fee for counsel was not appropriate costs item as appearance was already dealt with in billing related to hours spent on file. Time spent on matter and rates for counsel were generally reasonable. Defendants were given $500.00 credit for costs thrown away. Modest credit was appropriate as some defendants had already filed statement of defence.

Davey v. Hill (2019), 2019 CarswellOnt 32, 2019 ONSC 13, R.A. Lococo J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 15067, 2018 ONSC 5274, R.A. Lococo J. (Ont. S.C.J.).

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