The Defendant in a Class Action sought an Order for Costs against the Plaintiffs and their counsel, which the Plaintiffs opposed. The Plaintiffs cross-applied for an Order for no Costs. Justice Ross noted that the relevant Rules in the proceeding were Rules 10.29, 10.31, 10.32 and 10.33. Her Ladyship explained that the factors in Rule 10.33 related to the amount of Costs awarded, and that Rule 10.32 addressed whether a Costs Award should be made against an unsuccessful representative party in a Class Action.

Justice Ross considered the factors set out in Rule 10.32, which required the Court to consider the public interest, whether the Action involved a novel point of law, whether the proceeding was a test case, and access to justice considerations. Her Ladyship found that the underlying Action was not a test case and that all the 10.32 factors weighed in the favour of the Plaintiffs. The issues in the Class Action proceeding were issues of public importance, and issues of statutory interpretation present in the underlying Action that had not been previously analyzed by the Court could be considered a novel issue. The claim was potentially meritorious, triable, and was brought forward on behalf of class members who were disadvantaged and in the interests of their access to justice. Justice Ross dismissed the Defendant’s Application, and granted the Plaintiffs’ Application for no Costs.