The Fiction of Representative Plaintiff Liability: An Examination of Fee Shifting and Liability for Costs Within the Ontario Class Action Regime

AuthorAmanda Vanessa Lo Cicero
Pages243-270
243
THe fICTIon of
rePresenTaTIVe Pl aInTIff
lIabIlITY: an exaMInaTIon
of fee sHIfTInG and lIabIlITY
for CosTs wITHIn THe
onTar Io Class aCTIon r eGIMe
Amanda Vanessa Lo Cicero
Abstract: This paper will attempt to provide a comprehen-
sive examination of the use of fee shifting with in Ontario’s
class action regime, and its resulting legal and practical im-
plications. It will f‌irst examine the theoretical justif‌ications
in favour of fee shifting, and whether they hold when trans-
planted into a class act ion regime. The analysis then turns
to the current Ontario class action regime’s implementation
and use of fee shifting, and its implications for the viability
of class actions within the province. As cl ass actions persist
in the face of fee shifting, an examination of the indem ni-
f‌ication agreements that allow these actions to continue is
necessary. While these agreements are controversial, the
indemnif‌ication of repres entative plaintiffs is desir able both
practically and theoretically when properly acknowledged
by the courts and the class action bar. Concern arises not
from fee shifting itself, but rather from the perpetuation of
the “f‌iction” of representative plaintif f liability, as it leads to
opaque judgments and confusion regarding the proper use
of judicial discretion in awarding costs. An assessment of
the legal implications of the recognition of indemnif‌ication
agreements reveals that recognition does not undermine
the authorit y of the representative plaintiff, nor his ability
CCAR 8-2.indb 243 4/25/2013 3:10:36 PM
244
The Cana dian Cl ass Action Rev iew
to direct the action. The courts h ave clearly delineated that
counsel is not a party to the action, nor can she conduct the
litigation solely as she wishes. A s a result, the recognition
of representative plaint iff indemnif‌ication mainta ins existing
jurisprudence and upholds the statutory class action regime,
while producing clearer judgment s in the area of costs.
CCAR 8-2.indb 244 4/25/2013 3:10:36 PM

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT