Protection against cost awards is a central feature of almost all class action legislation in Canada. The various protections afforded in each jurisdiction appear to be very similar when comparing the legislation from one province to the next; however, judicial approaches to cost awards have been very inconsistent — both within individual jurisdictions and when comparing one to the next. Failure to consistently apply these provisions has led to uncertainty that threatens to undermine the very issue of access to justice that cost protections are aimed to protect. The author undertakes a critical analysis of the historical development of various “no-costs” interpretations in Canadian jurisdictions in order to highlight the differences in approach and in hopes of drawing out an underlying set of principles. The author moves on to adopt the position of the Federal Court with respect to costs in Campbell v Canada, and concludes with an analysis of legislative intent underlying the various class action regimes.
Brian J. Smith (Sat,) studied this question.