Can a motion for leave to bring a derivative action to the successful party be successful?
Ontario, Canada
The following excerpt is from Silver v. Imax Corporation, 2010 ONSC 4017 (CanLII):
In Jennings v. Bernstein (2001), 6 C.P.C. (5th) 272 (S.C.), Whitten J. awarded costs of a motion for leave to bring a derivative action to the successful moving party, notwithstanding that the merits would remain to be determined at trial. He noted that there was no reason to differentiate an application for leave to commence a derivative action from any other interlocutory step in the proceeding. He observed that the criteria for leave (under s. 246 of the Business Corporations Act) were independent of the end result of the proceedings; that is, whether the action appeared to be in the interest of the corporation and whether it was brought in good faith. The end result would not necessarily add to or detract from the merits of the interlocutory step.
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