What is the test for fixing costs on a motion for certification in a class action?

Ontario, Canada


The following excerpt is from McCracken v. Canadian National Railway Company, 2012 ONSC 6838 (CanLII):

In Pearson v. Inco Ltd., supra at para. 13 the court identified the following principles for fixing costs on a certification motion: (1) Ontario, unlike other class proceedings jurisdictions such as British Columbia, has not sought to interfere with the normal rule that costs will ordinarily follow the event; (2) the costs must reflect what is fair and reasonable; (3) the costs should, if possible, reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance; (4) a motion for certification is a vital step in the proceeding and the parties expect to devote substantial resources to prosecuting and defending the motion; (5) the costs expectations of the parties can be determined by the amount of costs that an unsuccessful party could reasonably expect to pay; (6) the complexity of the issues is a factor in what is fair and reasonable for costs; (7) whether the case raises an issue of public importance is a factor in fixing costs; and (8) a fundamental object of the Class Proceedings Act, 1992 is to provide enhanced access to justice.

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