The Fiction of Representative Plaintiff Liability: An Examination of Fee Shifting and Liability for Costs Within the Ontario Class Action Regime

This paper will attempt to provide a comprehensive examination of the use of fee shifting within Ontario’s class action regime, and its resulting legal and practical implications. It will first examine the theoretical justifications in favour of fee shifting, and whether they hold when transplanted into a class action regime. The analysis then turns to the current Ontario class action regime’s implementation and use of fee shifting, and its implications for the viability of class actions within the province. As class actions persist in the face of fee shifting, an examination of the indemnification agreements that allow these actions to continue is necessary. While these agreements are controversial, the indemnification of representative plaintiffs is desirable both practically and theoretically when properly acknowledged by the courts and the class action bar. Concern arises not from fee shifting itself, but rather from the perpetuation of the “fiction” of representative plaintiff liability, as it leads to opaque judgments and confusion regarding the proper use of judicial discretion in awarding costs. An assessment of the legal implications of the recognition of indemnification agreements reveals that recognition does not undermine the authority of the representative plaintiff, nor his ability to direct the action. The courts have clearly delineated that counsel is not a party to the action, nor can she conduct the litigation solely as she wishes. As a result, the recognition of representative plaintiff indemnification maintains existing jurisprudence and upholds the statutory class action regime, while producing clearer judgments in the area of costs.