Balancing The Costs Of Justice: Exposure To Adverse Costs After An Unsuccessful Certification Motion

Should a proposed representative plaintiff be exposed to adverse costs following an unsuccessful certification motion? Justice Glustein from the Ontario Superior Court of Justice answered this question in Davidson v. T.E.S. Contract Services Inc., 2024 ONSC 4362.

Background

Prior to this costs decision, Justice Glustein dismissed the Plaintiff's motion for certification.

The defendant sought nearly $400,000 in partial indemnity costs. Class Counsel argued that costs should be reduced or there should be no order as to costs since there was no third-party funder, which meant that the end payor would be Class Counsel, the proposed representative plaintiff, or a combination of both.