$1.2-million Substantial Indemnity Costs Order Is Cautionary Tale For Class Counsel

Class counsel who pursue unmeritorious claims or who unduly complicate proceedings may face significant costs consequences, including costs on a substantial indemnity basis. This was the message clearly sent in Del Giudice v. Thompson,  a privacy class action, in which Justice Perell of the Ontario Superior Court of Justice recently ordered the unsuccessful plaintiffs to pay substantial indemnity costs of $1.225 million to two successful defendants.

While we have previously reported on other large cost awards in class actions (see our posts on Yip v. HSBC and Hughes v. LCBO), this is one of the first cases in which the costs of a certification motion were awarded to a successful defendant on a substantial (rather than partial) indemnity basis.