From Edmonds to Campbell: A Principled Basis for Pre-certification Costs

• Author: Brian J Smith
• Pages: 73-98

73

FROM

EDMONDS

TO

CAMPBELL

:

A PRINCIPLED BASIS FOR

PRE-CERTIFICATION COSTS

Brian J Smith

Abstract: Protection against cost awa rds is a central feature of

almost all cla ss action legislation in Canada. The various pro -

tections afforded in each jur isdiction appear to be very simi-

lar when comparing the legislation from one province to the

next; however, judicial approaches to cost awards h ave been

very inconsistent — both within indiv idual jurisdictions

and when comparing one to the next. Failure to consistently

apply these provisions has led to uncertaint y that threaten s

to undermine the ver y issue of access to justice that cost pro-

tections are aimed to protect. The author undert akes a critical

analysis of the historical development of various “no-costs”

interpretations in Canadian jurisdictions in order to high-

light the differences i n approach and in hopes of draw ing out

an underlying set of princ iples. The author moves on to adopt

the position of the Federal Court w ith respect to costs in

Campbell v Canada, and concludes wit h an analysis of legisla-

tive intent underlying the various class action regimes.