Set Back for Ontario Sex Abuse Class Action

A class action lawsuit on behalf of former students of St. Andrew’s College in Ontario who say they were sexually abused has suffered a set back. Students who say they were sexually abused by former teacher John Bradley have filed a class action seeking compensation.

In a highly unusual move, the proposed lead plaintiff applied to the court for an order requesting immunity from costs. In other words, if the proposed class action is not certified , or if the claim is not successful at trial, the lead plaintiff does not want to be responsible for paying costs (legal fees) to the Defendants.

Under the Ontario Class Proceedings Act an award of costs is solely within the discretion of the court.

In considering the request, Justice Lax stated:

Costs awards can be used as a powerful tool for ensuring that the justice system functions fairly and efficiently. They can promote settlement, encourage efficiency in the conduct of litigation, and sanction improper conduct. Danier, Okanagan and Little Sisters, all very recent decisions of the Supreme Court of Canada, send a strong collective message that it is the exceptional case that will warrant preferential treatment with respect to costs and that the general rule that costs follow the cause has not been displaced in litigation, even in issues of public importance. It follows that there must be very compelling reasons to immunize a litigant in advance from an adverse costs award.

Justice Lax ultimately denied the plaintiff’s motion saying:

What P.M. seeks is an order that he pay no costs in any event of the cause. Such an order is rare. In the context of a proposed class proceeding where a significant portion of the costs are associated with the motion for certification (estimated by SAC to be approximately $380,000 on a substantial indemnity basis), it would not only be contrary to well-established principles for awarding costs, but unfair.

You can read the whole decision here.