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

• Author: Amanda Vanessa Lo Cicero
• Pages: 243-270

243

THe fICTIon of

rePresenTaTIVe PlaInTIff

lIabIlITY: an exaMInaTIon

of fee sHIfTInG and lIabIlITY

for CosTs wITHIn THe

onTarIo Class aCTIon reGIMe

Amanda Vanessa Lo Cicero

Abstract: This paper will attempt to provide a comprehen-

sive examination of the use of fee shifting within 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 action 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 class actions persist

in the face of fee shifting, an examination of the indemni-

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 plaintiff 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 authority of the representative plaintiff, nor his ability

CCAR 8-2.indb 2434/25/2013 3:10:36 PM

244

The Canadian Class Action Review

to direct the action. The courts have clearly delineated that

counsel is not a party to the action, nor can she conduct the

litigation solely as she wishes. As a result, the recognition

of representative plaint iff indemnif‌ication mainta ins existing

jurisprudence and upholds the statutory class action regime,

while producing clearer judgments in the area of costs.

CCAR 8-2.indb 2444/25/2013 3:10:36 PM