Costs order varied to make Class Counsel liable after they refused to indemnify the representative plaintiff.
The defendants in a decertified class action brought a motion to vary a $100,000 costs order to make Class Counsel, rather than the representative plaintiff, responsible for payment.
Class Counsel had refused to pay the costs, claiming they were not retained for 'collections' and refusing to disclose whether their retainer included a standard costs indemnity.
The court found it was not functus officio because the lack of a costs indemnity was new and critical evidence that contradicted the standard practice and representations made at certification.
Relying on Rule 59.06, its inherent jurisdiction, and section 12 of the Class Proceedings Act, the court varied the costs order to add Class Counsel as a party responsible for payment.
SCJSuperior Court of JusticeJun 17, 2026
