Lexpert Magazine

LEXPERT MAGAZINE | JANUARY 2019 21 CASE COMMENT FEATURES Costs in Public Interest Class Proceedings While Justice Feldman wrote the majority decision, Justice Doherty wrote a concur- ring decision addressing the motion judge's costs order. He ultimately decided to re- duce the costs order by 30% to reflect the public interest component of the claim. Section 31(1) of the Class Proceedings Act specifically empowers the court to consider whether the class proceeding is a test case, raises a novel point of law, or involves the public interest in deciding on the appropri- ate quantum of costs to order. e Court of Appeal noted that in the context of the claim by a successful Defendant for costs, the factors identifying s. 31(1) may mitigate the costs the losing Plaintiff may be ordered to pay. In some cases, they may result in a no costs order. e motion judge here held that the claim had no public interest component. e Court of Appeal overturned this deci- sion and in doing so, provided additional clarity to the term "public interest" within the meaning of s. 31(1). e Court held that public interest can refer to seeking access to justice through class proceedings by persons or groups who have historically faced significant disad- vantage in seeking legal redress for alleged wrongs. It can also refer to the subject mat- ter of the claim, including claims that raise issues that transcend the immediate inter- ests of the litigation and engage broader concerns of significant importance. e Court of Appeal noted that in this case, as in many others, the Class Proceed- ings Committee had decided to award fund- ing to Plaintiffs' counsel. e Court noted that the relevant regulations governing the Committee's decision provide that the Com- mittee may consider the extent to which the proceedings affect the public interest. e Court then noted that, "If the Fund properly follows its mandate and properly concludes that the litigation involves a matter of 'public interest', the Fund can reasonably expect that the motion judge or trial judge also conclude that the litigation involves a matter of 'public interest', that 'public interest' will mitigate to some extend the costs for which the fund may be liable." Justice Doherty also held that the fact that when the Plaintiffs had a monetary motivation for advancing their claim, it eliminated any public interest component. Rather, he noted that both seeking the monetary compensation and the public interest component can exist together in a class action. In light of all those circumstances, Jus- tice Doherty directed that the costs payable be reduced by 30%. Justice Doherty's decision sheds signifi- cant light on the interpretation of public interest within s. 31(1) of the Class Proceed- ings Act. It confirms that public interest litigants can expect some form of discount in costs to reflect the public interest nature of those cases. Yet it also confirms that the public interest nature of a case will not immunize unsuccessful plaintiffs entirely from cost consequences. Justice Doherty went on to hold that this case was in the public interest from the perspective of promoting access to jus- tice to a historically disadvantaged group. While Loblaws argued that public interest within s. 31(1) can only include promotion of access to justice brought on behalf of Ontario residents, the Court rejected that approach. Justice Doherty noted there was nothing in s. 31(1) that would justify limit- ing access to justice concerns for claimants who reside in Ontario. "Justice Doherty's decision sheds significant light on the interpretation of public interest within s. 31(1) of the Class Proceed- ings Act. It confirms that public interest litigants can expect some form of discount in costs to reflect the public interest nature of those cases." Paul-Erik Veel is a partner at Lenczner Slaght in Toronto.

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