In the twenty-five years since Ontario’s Class Proceedings Act, 1992 has come into force, a number of concerns have been expressed by judges, practitioners, and academics regarding the success of Ontario’s “cost-shifting” regime. In particular, the significant adverse cost awards faced by would-be representative plaintiffs at the certification stage threaten to undermine the primary goal of class proceedings — access to justice.
In response to a gap in the literature, and in light of the Law Commission of Ontario’s recent decision to undertake a review of class actions in Ontario, this paper provides a quantitative analysis of how cost decisions in the certification motion context have evolved throughout the life of the Class Proceedings Act, 1992 and focuses on whether the current costs regime is inhibiting access to justice. The data confirms that the quantum of cost awards has been increasing over time, especially during the last eight to ten years, and that the Class Proceedings Fund and section 31(1) of the Class Proceedings Act, 1992 have not consistently succeeded in protecting plaintiffs from the potentially negative impact of these rising costs. In light of these concerns, the paper concludes with recommendations that have the potential to help maintain the viability of the existing costs regime while preserving access to justice.