Cost-shifting and Access to Justice: A Quantitative Review of Certification Motion Cost Awards in Ontario

• Author: Brandon Pasternak
• Pages: 255-333

255

“COST-SHIFTING” AND ACCESS

TO JUSTICE: A QUANTITATIVE

REV IE W OF CERTIFIC ATION

MOTION COST AWARDS IN

ONTAR IO

Brandon Pasternak

Abstract: In the twenty-f‌ive years since Ontario’s Class Pro-

ceedings Act, 1992 has come into force, a number of concerns

have been expressed by judges, practitioners, and academ-

ics regarding the success of Ontario’s “cost-shifting” reg ime.

In particular, the signif‌icant adverse cost awards faced by

would-be representative plaintiffs at the certif‌ication stage

threaten to underm ine the primar y goal of class proceedings

— access to justice.

In response to a gap in the literature, and in light of the

Law Commission of Ontario’s recent decision to undertake

a review of class actions in Ontario, thi s paper provides a

quantitative analysis of how cost decisions in the certif‌ica-

tion motion context have evolved throughout the life of the

Class Proceedings Act, 1992 and focuses on whether the cur-

rent costs regime is inhibiting access to just ice. The data

conf‌irms th at the quantum of cost awards has been increa s-

ing over time, especi ally during the last eight to ten years,

and that the Class Proceedings Fund and section 31(1) of the

Class Proceedings Act, 1992 have not consistently succeeded

in protecting plaintiffs from the potentially negative impact

of these rising costs. In light of these concerns, the paper

concludes with recommendations that have the potential to

help maintain the viability of the existing costs reg ime while

preserving access to justice.

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257

“COST-SHIFTING” AND ACCESS TO

JUSTICE: A QUANTITATIVE R EVIEW

OF CERTIFICATION MOTION COST

AWARDS IN ONTARIO

Brandon Pasternak*

A. INTRODUCTION

When the Ontario L aw Reform Commission f‌irst recommended how

Ontario’s class proceedings legislation should be structured, it noted

that costs were the single most important consideration.1 The commis-

sion emphasized th at how this new regime approached the issue of costs

would determine not only the eff‌icacy of cl ass proceedings, but “whether

[they] would be utilized at all.”2

Over thirt y-f‌ive years later, and twenty-f‌ive years after Ontar io’s Class

Proceedings Act, 19923 (th e CPA ) came into force, a number of concerns

have been expressed by judges,4 practitioners,5 and academics6 regard-

ing the appropriateness of the “cost-shifting” regime that wa s ultimately

* Hons BA and Gold Meda list, Queen’s University; JD and W.P.M. Kennedy Silver

Medalist, Un iversity of Toronto Faculty of Law. Brandon Pastern ak was called

to the Ontar io Bar in 2018 and is currently clerk ing at a court in Toronto. He

wishes to t hank God; his wife, Sh annon; and his parents, K athryn and Ga ry, for

their continued support.

1 Ontario Law Re form Commission, Repor t on Class Actions (Toronto: M inist ry

of the Attorney Gene ral, 1982) at 647 [OLRC].

2 Ibid.

3 SO 1992, c 6 [CPA].

4 See, for example, Bayens v Kinross Gold Cor poration, 2013 ONSC 4974 at para

32 [Bayen s]; and Dugal v Manulife Financial Corp, 2011 ONSC 1785 at para 29

[Dugal].

5 Law Commission of O ntario, “Review of Class Ac tions in Ontario: Issue s to

be Considered” (November 2013), online: ww w.lco-cdo.org/w p-content/up-

loads/2014/01/class-act ions-issues-to-be- considered.pdf [LCO, “Issues”].

6 See, for example, David G ourlay, “A Class Act Comes of Age: Co sts and Cer-

tif‌ication a s the OLRC Report Turns Twenty” (2004) 1:2 Canadian Class Action

Review 273 at 281.

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