CANADA Trends and Developments Contributed by: Elizabeth Bowker, Shadi Katirai, Christian Breukelman and Grace Murdoch, Stieber Berlach LLP
ince of Ontario, in which the proposed representa- tive plaintiffs sought CAD200 million for claims arising from the use of seclusion and restraint over a 24-year class period. The plaintiffs’ motion for certification in this case was hard-fought but ultimately dismissed by the certifi- cation judge, whose decision was upheld on appeal. While the certification decision has significant prec- edential value for future institutional abuse claims, the costs endorsement illustrates the increasing effort often required to respond to motions for certification. The first set of defendants (the psychiatric institution and certain members of its senior leadership team) claimed a total of CAD1.4 million in partial indemnity costs responding to certification. Notably, this did not include over CAD500,000 in costs incurred up to certi- fication that were discounted from its claim for costs. The other defendant (the Province of Ontario) had incurred CAD815,000 in partial indemnity costs. The plaintiffs’ bill of costs disclosed approximately CAD1 million in partial indemnity costs. The scale of costs incurred by the parties reflected the significant efforts expended on certification. The cer- tification record was nearly 15,000 pages. The record included 27 witnesses, with nine experts among them. Cross-examinations took 22 days. Across all parties, lawyers spent approximately 15,000 hours litigating certification. Ultimately, the certification judge relied on section 31 of Ontario’s Class Proceedings Act (which allows the court to consider whether the proposed class action concerned a matter of public interest) and applied a 10% discount to the defendants’ claims for costs. He awarded the institutional defendants CAD1.17 million and the Province CAD735,000 in costs.
The plaintiffs sought leave to appeal this costs award, arguing that it was an “unprecedented and unparal- leled departure” from costs awards in systemic abuse cases. However, the Court of Appeal for Ontario upheld the certification judge’s exercise of discretion and did not displace his costs award. The Stolove decision likely represents one of the larg- est costs awards on a certification motion that did not also involve summary judgment. We have seen a trend of increasingly complex and novel claims, particularly where institutional abuse is being alleged. The Stolove decision illustrates the time, effort and expense that can go into motions for certification. While a responding party can take steps to limit the complexity and costs of certification, class counsel are compiling extensive records that inevita- bly require a thorough response. This trend will affect proceedings differently depend- ing on where they were commenced. Most provinc- es, including Ontario, are loser-pays jurisdictions. In other words, the unsuccessful party on a certification motion can expect to bear the partial indemnity costs of the successful party. The Class Proceedings Act in British Columbia, in contrast, mandates a “no costs” regime in which no costs of certification proceedings may be awarded, absent exceptional conduct or cir- cumstances. Regardless of where a class proceeding is com- menced, however, rising certification costs are a real consideration for insurers assessing exposure to class actions.
62 I NSURANCE L I T IGATI O N 2026
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