Canada: Lower Cost Awards In Class Actions: What Does It Mean for Access To Justice?

Last Updated: October 13 2014
Article by Alexandra Teodorescu

The general rule in civil cases is that "costs follow the event." In other words, the losing party pays a portion of the legal costs of the successful party. This rule also applies to class actions and is codified in section 31 of the Class Proceedings Act, 1992.

Despite parallel rules regarding costs, ordinary civil actions are quite different from class actions. A fundamental objective of class actions is to provide enhanced access to justice. One way class proceedings achieve this goal is by eliminating legal costs for representative plaintiffs and class members. Generally, class counsel act on a contingency fee basis and indemnify plaintiffs against adverse cost orders. In class actions, the risks of litigation are transferred from the client to the lawyer, making it easier and more affordable for individuals to access the legal system.

However, access to justice is undermined when class counsel are deterred from bringing meritorious actions by the risk of extremely high adverse cost awards. For example, in Martin v. AstraZeneca Pharmaceuticals PLC, plaintiff's counsel was on the hook for a $700,000 costs award after an unsuccessful motion to certify a claim as a class action. The costs order in Martin is particularly significant given the fact that the goal of certification is to determine if, procedurally, the case should be brought as a class action; the merits of the claim are not seriously considered on a motion for certification.

Justice Belobaba on Costs

In 2013, Justice Belobaba of the Ontario Superior Court of Justice released five costs decisions in which he criticized lawyers for filing voluminous materials, over-litigating issues and unnecessarily lengthening proceedings (Brown v. Canada (Attorney General), Sankar v. Bell Mobility, Crisante v. DePuy Orthopaedics, Dugal v. Manulife and Rosen v. BMO Nesbitt Burns). The result, he states, is clear: "access to justice, even in an area that was specifically designed to achieve this goal, is becoming too expensive."

In an effort to enhance access to justice and ascribe transparency to the decision-making process, Justice Belobaba developed a procedure for determining the costs of a certification motion. Justice Belobaba stated that he would generally accept costs outlines at face value, apart from obvious excesses in fees or disbursements, and would not require either side to submit actual dockets, time entries or disbursement receipts. He further stated that should the unsuccessful party want to argue that the successful party's cost submissions are unreasonable, it should submit its own costs outline. Finally, Justice Belobaba stated that he would consider historical costs awards in similar cases.

Justice Belobaba's procedure for calculating costs will likely lead to more modest cost orders. Justice Belobaba stated that he hopes his guidelines will result "in leaner and more focused certification motions, a greater measure of predictability for the participants, and in the overall, the continuing viability of the class action vehicle."

Practical Implications

The effect of Justice Belobaba's decisions on access to justice has yet to be seen. On the one hand, lower cost awards may have the desired effect of enhancing access to justice. The prospect of lower adverse cost orders could mean less risk for lawyers pursuing class action claims on behalf of their clients. Furthermore, third party investors may be more willing to help class counsel finance prospective class actions.

On the other hand, some members of the class actions bar have suggested that decreased costs could have a detrimental effect on access to justice. The certification motion, they argue, is a significant hurdle that, in practice, requires class counsel to invest considerable time and money to prove that the action is best prosecuted as a class proceeding. Well-resourced defendants often engage in "kitchen sink" tactics when opposing certification, and it is unclear whether a lower costs regime will curtail this practice. Without the possibility of recuperating at least a modest amount of their costs, plaintiffs' counsel may be more cautious in bringing class action law suits and agreeing to indemnify plaintiffs against adverse costs awards.

Defendants say that a more streamlined and conservative costs regime will increase the financial risks of litigation. Lower cost awards may mean that defendants will have to deal with more unmeritorious claims. Furthermore, defendants who are forced to litigate potentially questionable actions will recover less of their costs if they are successful in defending the certification motion. Without financial consequences for unsuccessful plaintiffs, defendants may be held captive by protracted litigation.

Towards a "No Costs" Rule?

In the five costs decisions outlined above, Justice Belobaba advocates against awarding costs in class proceedings all together. Similarly, in Bayens v. Kinross Gold Corporation, Justice Perell of the Ontario Superior Court of Justice questioned whether the loser-pays regime is applicable to class actions. In contrast to Ontario, there is a "no costs" rule in British Columbia, Saskatchewan, Manitoba and Newfoundland.

The Law Commission of Ontario is currently reevaluating the traditional cost rules as they apply to class actions. The Commission is particularly alive to concerns that adverse cost awards may frustrate access to justice. Whether the Legislature will adopt Justice Belobaba's cost guidelines or elect to implement a "no costs" regime remains to be seen. What is clear is that the Commission's recommendations on adverse costs will shape litigation strategies and equally impact plaintiffs, defendants and third party funders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Alexandra Teodorescu
Events from this Firm
8 Nov 2018, Conference, Toronto, Canada

This year’s program is entitled “An Analysis of Fidelity Claims for the Modern World.” The program will address important substantive and practical issues germane to today’s fidelity claims handling.

Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
Borden Ladner Gervais LLP
Osler, Hoskin & Harcourt LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
Borden Ladner Gervais LLP
Osler, Hoskin & Harcourt LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions