Costs In The Cause Where Success Divided Still Reflects Access To Justice Concerns

In two recent decisions, Fantl v. Transamerica Life Canada, 2013 ONSC 5198 (CanLII) ("Fantl") and Kang v. Sun Life Assurance Company of Canada, 2013 ONSC 4800 (CanLII), Justice Perell awarded costs in the cause for motions under the Class Proceedings Act, 1992 ("CPA") where he found that success was divided.  Justice Perell found that neither proposed class proceeding "was a test case, raised a novel point of law or involved a matter of public interest" under s. 31 of the CPA that would warrant special consideration in awarding costs. Justice Perell affirmed that absent special consideration, costs in class action litigation follow the normal rules, and are intended to award successful litigants. His reasons suggest that the access to justice concerns underlying class action proceedings remain a relevant consideration and may be consistent with ordering costs payable in the cause where success is divided.