How have the courts treated costs in a representative action?

Next, the trial judge referred to Turner v. Andrews, supra. This was a representative action brought on behalf of a small group of pension plan beneficiaries against the trustees of the plan alleging that the trustees had breached their duties to the group in the manner in which they had administered the plan. The representative plaintiff applied in chambers for an order that the reasonable legal fees and disbursements required to prosecute the action be paid prospectively from the pension fund. The plaintiff argued that the matter was within the second Buckton category and that he would therefore receive his costs from the fund at the conclusion of the trial. In dismissing the application, Allan J. noted that the plaintiff had not applied in chambers for an interpretation of the applicable provisions of the plan but had rather commenced an action. She observed that the relief claimed included damages and that an award in favour of the represented group could adversely affect the unrepresented beneficiaries of the plan. She concluded that this was an adversarial proceeding and refused to award costs prospectively, since to do so would fetter the trial judge’s discretion to award costs at the conclusion of the trial.