B.C.'s no-costs regime and flexible funding drive a surge in high-stakes class actions
This article's title is adapted from a phrase ("Go West, Young Man") coined by news publishers in the 1850s. It captured the imaginations of clerks, mechanics, and soldiers returning from the U.S. Civil War, many of whom moved west to take up a homestead.
As provincial class action regimes diverge, where might a young lawyer who is intent on building a career in class actions, choose to go? Has B.C. emerged as the premier common law province for energetic and entrepreneurial counsel to bring complex, high-stakes class proceedings?
B.C.'s landscape is distinguished by a no-costs regime, a permissive approach to litigation funding agreements (LFAs) and procedural flexibility. Together these features lower barriers to accessing justice.
By contrast, do changes in other provinces reduce incentives for counsel to take on cases that are large and risky, with lengthy timeframes between filing and judgment? If so, is this desirable? These are among the cases that class action legislation was designed to enable, by creating financial incentives exceeding the billable hour metric, to attract skilled counsel.
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THE NATIONAL LANDSCAPE: DIVERGING PATHS
Québec
So far in 2025, Québec leads the country in the number of class action filings (40) and authorizations (19).1 Placing those totals in the national context: it is typical for plaintiffs to pursue an action for Québec residents alongside actions in common law jurisdictions, due to differences in substantive and procedural law. Moreover, Québec class actions start with an authorization application, unlike common law provinces that start with a claim and then move to certification.
In recent years, despite the high authorizations, Québec courts have increasingly dismissed actions on the merits. To date in 2025, of the five merits decisions in Québec, four were dismissed.2
Ontario
The Ontario CPA requires class proceedings to be the "superior" option and that common factual and legal issues "predominate": s. 5(1.1).
Ontario is also a loser-pays costs jurisdiction for class proceedings. It does have a Class Proceedings Fund (CPF) which, for approved cases, indemnifies against adverse costs and provides disbursement funding in exchange for a 10% levy. As to litigation funding, Ontario has a statutory approval regime, based on the landmark Houle decisions.3
In Houle-1, the court refused to approve an LFA involving a hybrid-retainer which was to pay class counsel 50% of their docketed time, plus a success fee of 30–38%, split 2:1 in the funder's favour. The court found that the LFA overcompensated the funder and risked interference with the lawyer-client relationship; it approved only 10% with the balance subject to future court approval, and directed the replacement of 13 clauses it deemed overly-intrusive. That result was upheld on appeal in Houle-2.
Subsequent authorities have limited recovery and confirmed that meeting the statutory approval criteria is not alone sufficient to obtain approval of an LFA.
In Drynan4 (2020), the court capped the combined recovery of counsel and funder within the range of "presumptive validity" (33%). In Gebien5 (2023), the court declined to approve an LFA, citing concerns with confidentiality and deemed undertaking provisions.6 In Nootchtai (2025), the court set aside a hybrid contingency fee agreement altogether, despite "stunning success ... over some 17 years."7 The court granted a quantum meruit accounting, with the result that legal fees were cut to less than 1% of the value of the outcome – radically different from the fee bargained for (although counsel's conduct was also a significant factor).8
Saskatchewan
On the prairies: Saskatchewan's 2001 Class Actions Act (CAA) created a no-costs regime which made Saskatchewan the most popular prairie jurisdiction to file class actions.9
In 2015, Saskatchewan's CAA was amended to restore the court's discretion to order costs. Over time, courts began regularly doing so. In 2023 Saskatchewan's Court of Appeal held that s. 40 does not limit an award of costs nor suggest that costs should rarely be ordered.10 Since 2015 Saskatchewan filings have trended downwards.11
In June 2023, Saskatchewan's Law Reform Commission recommended amendments to the CAA. Notably, no cost-related changes were proposed.
British Columbia
The year 2024 saw over 60 class actions filed in B.C., up sharply from 39 in the year prior. Ontario saw a decrease, from 36 in 2023 to 30 in 2024.12
Under s. 37 of the B.C. CPA, no costs can be awarded against a party to a certification application, or thereafter if certified, absent "exceptional circumstances."
For mega-cases where funding is needed, it helps that B.C. has no entrenched judicial history of rewriting LFAs. Rather, the jurisprudence in B.C. begins and ends with the Stanway decisions in 2013 and 2014.13 In Stanway-1, the court confirmed that LFAs may be approved under the B.C. CPA, despite its silence on such arrangements.14In Stanway-2, the court approved B.C.'s first LFA — an agreement guaranteeing the funder a minimum 150% return with no cap,15 despite the defendant's argument that the return was unjustified because B.C.'s no-costs regime meant less risk to the funder than elsewhere. Notwithstanding the potential "windfall" recovery, the LFA was found to be reasonable.16
This approach makes sense when one considers the alternative, i.e., that a meritorious claim is never brought, thus defeating two core objectives of class actions: access to justice and behaviour modification. While other jurisdictions have hit the brakes (and even put the class actions train in reverse), B.C. has stayed on track, prioritizing efficiency within a stable class action framework.
Class actions in B.C. are no longer automatically case managed. Straightforward and lower-stakes cases need not revolve around a case management judge's schedule. Conversely, case managed actions can be managed robustly – as happened in a recent refusal to adjourn certification with no attribution of fault for delay (despite defendants' argument that plaintiffs were at fault). It was enough that there had been "substantial delay" and that further postponement would frustrate the purpose of class proceedings.17
B.C.'s courts treat class actions flexibly: in Jean Coutu (2023), the Court of Appeal confirmed the courts' discretion to "sequence" applications (i.e. certification versus other applications) to best facilitate judicial economy and timely dispute resolution. 18
None of this means that plaintiffs enjoy a consequence-free environment. For example, in Cineplex (2025), the court granted leave for a pre-certification motion to strike, reasoning that while certification applications should be the first application heard, the plaintiff must take the initiative by delivering certification materials as soon as practicable—there, the plaintiff "failed to bring their certification application to the main event."19
In another recent case, the court addressed the "plague" of counsel tendering excessive authorities (411 cases for a 7-day certification hearing) by recommending a joint book of authorities and other specific guidance for future cases.20
Together, these cases illustrate how B.C.'s judicial oversight is aimed at promoting efficiency and forward momentum, without tinkering unduly with the economic incentives that exist to support a robust class action landscape.
CONCLUSION
Despite any debate on whether financial rewards to successful plaintiffs' counsel and funders are a "feature" or a consequential evil, we suggest they are necessary. In B.C., plaintiffs and funders can be relatively confident that their negotiated arrangements will be respected throughout court review and fee approval. For all of these reasons, B.C. is well positioned as a forum in which to litigate the next generation of mega-cases.
Footnotes
1. Merminod et al., 2025: Class Actions Landscape in Canada
2. Merminod et al.
3. Houle v St. Jude Medical Inc., 2017 ONSC 5129 (Houle-1), aff'd 2018 ONSC 6352 (Houle-2).
4. Drynan v Bausch Health Companies Inc., 2020 ONSC 4379
5. Gebien v Apotex Inc., 2023 ONSC
6. Supervisory edits of this kind are appropriate to curb overreach. But second guessing negotiated financial terms is – we suggest – to risk impairing the ability to fund mega-cases at all. The 2025 annual report of prominent litigation funder Omni Bridgeway indicates that some litigation funders are "discontinuing operations due to lack of sufficient returns or for lack of scale to attract further capital", while also arguing that vested interests (corporations, insurers) continue seeking to restrict litigation finance generally.
https://omnibridgeway.com/InvestorPresentations/omni-bridgeway-annual-report-2025/10/ at pages 10-11.
7. Nootchtai v Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, 2025 ONSC 6071 (Nootchtai) at para 6.
8. The conduct included threatening to resign (paras. 192-193), failing to recognize its conflict of interests (paras. 34, 174) and failing to recommend independent legal advice (para. 71).
9. McAllister & Ma, 2015: Loser Pays: Saskatchewan Restores Costs Awards For Class Actions.
10. MacInnis v Bayer Inc., 2023 SKCA 37.
11. National Class Action Database.
12. CBA Database / BC Class Actions 2024 Year in Review.
13. Stanway v Wyeth Canada Inc., 2013 BCSC 1585 (Stanway-1); Stanway v Wyeth Canada Inc., 2014 BCSC 931 (Stanway-2).
14. Stanway-1.
15. Stanway-2.
16. Stanway-2.
17. British Columbia v Apotex Inc., 2023 BCSC 2047.
18. British Columbia v The Jean Coutu Group (PJC) Inc., 2021 BCCA 219.
19. Bahraini v Cineplex Inc., 2025 BCSC 1384. Note that s. 2(3) of the B.C. CPA requires a certification application to be brought within 90-days of the close of pleadings. In practice never happens, but it remains the prima facie requirement under the statute. One looks forward to a case in which counsel are organized and bold enough to enforce it.
20. Lam v Flo Health Inc., 2024 BCSC 391.
Originally published by Lexpert.
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