In January, 2011, Mr. Tinkler was appointed Litigation Representative for the minor Plaintiff, EMP, who was involved in a proposed Class Action with respect to invalid Temporary Guardianship Orders for children in Government custody. At that time, Graesser J. exempted Mr. Tinkler from liability for Costs and held that reasonable legal fees and disbursements of counsel consulted by EMP’s Litigation Representative should be paid by the Crown (the “January 2011 Decision”). Mr. Tinkler brought an Application to be exempted from Costs because he was unwilling to continue to act as Litigation Representative for EMP without such an exemption. Mr. Tinkler argued that no other Litigation Representative would be available or willing to act without an exemption from Costs, which would mean that the proposed Child Class Action would be unable to proceed.

Graesser J. highlighted that both exemption from liability for Costs and advance Costs, for a Litigation Representative of a Representative Plaintiff in a Class Proceeding, appeared to be novel issues, which should be addressed if the Class Proceeding went forward. However, such considerations were premature because there was no decision yet regarding Certification. The Court held that it was only necessary to determine the extent to which the January 2011 Decision should be continued or varied. Graesser J. considered this to be an “unusual situation” where the Application for Certification should be covered by the exemption for liability of Costs; however, the Court did not grant any exemption from Costs that might be awarded under Rules 10.49 or 10.50. The Court noted that Mr. Tinkler is a lawyer and as such, Rule 2.17 applied. Further, it was held that there was at least arguable merit to EMP’s Claims and it would not be in EMP’s best interest if the Certification Application was dismissed because of the absence of a Litigation Representative.