Take Note: Class Action Defendants May Be Ordered To Bear The Costs Of Notice To Class Members

Justice Perell's decision in Fantl v. ivari, teaches class action defendants an important lesson in being careful what they wish for. In a rare decision, he ordered that a defendant contribute the majority of the costs of providing potential class members with notice of certification.

Background

When a class action is certified by a court, efforts must be made to notify potential class members of the decision so that they are able to exercise their right to opt-out of the class. Notice is usually provided by newspaper publication, advertisements and dedicated website, among other things.

Typically, the successful plaintiff bears the financial costs of providing notice of certification (see Quinte v. Eastwood Mall Inc., 2014 ONSC 249). However, defendants have an interest in ensuring that the form of the notice and the plan for its distribution are sufficiently robust to ensure they will constitute a binding issue estoppel—which bars future claims by class