Attis v. Ontario (Minister of Health) 2010 ONSC 4508,
Released 10 September 2010
Class Actions – Costs Awards Against Plaintiffs'
The Attorney General sought an order for the outstanding costs
of a class action to be paid by the plaintiffs' solicitors.
Following unsuccessful appeals to the Court of Appeal and the
Supreme Court, the total costs awarded against the plaintiffs were
over $165,000. The plaintiffs were impecunious. The Court granted
the motion and required the solicitors to bear the costs of the
The Court placed a special emphasis on the need for proper
disclosure of costs consequences to representative plaintiffs in a
class proceeding. The decision emphasizes that the absence of
informed consent is equivalent to absence of consent, and given the
evidence that the action would not have been brought by the
plaintiffs if they were aware of the costs consequences, it was
within the court's jurisdiction to hold their solicitors
There was no documentary evidence that the solicitors advised
the plaintiffs of their potential liability to pay a costs award.
Given the lack of sufficient evidence to establish that the
plaintiffs were advised of potential personal liability, and given
the evidence of the plaintiff's complete confidence in their
solicitors, the court was satisfied that it was appropriate that
the costs award should be payable by the firm.
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