Following the dismissal of an environmental class action on appeal, the successful defendant sought costs for the period from certification to the trial decision, payable from the Class Proceedings Fund administered by the Law Foundation of Ontario.
The court held that the defendant was prima facie entitled to costs on a partial indemnity basis under the general rule that costs follow the event.
However, under s.31(1) of the Class Proceedings Act, the court considered that the proceeding raised novel legal issues concerning environmental mass torts and class proceedings and involved significant public interest, including access to justice and environmental concerns.
Balancing these factors with the defendant’s entitlement to compensation for substantial litigation expenses, the court reduced the costs award.
The defendant was awarded 50% of the otherwise assessed costs, payable from the Fund.