Loser Pays: Saskatchewan Restores Costs Awards For Class Actions

The stakes have been raised for parties to class actions in Saskatchewan. On May 14, 2015, Saskatchewan's Class Actions Act ("CAA") was amended, restoring judicial discretion to award costs in class action proceedings. The losing party to a class action now faces the possibility of being ordered to pay for some or all of the winning party's legal expenses and disbursements.

Previously, Saskatchewan was a no-costs jurisdiction.1 No-costs jurisdictions, including those presently found in British Columbia, Manitoba, Newfoundland, and the Federal Courts, are generally considered to be plaintiff friendly. In these jurisdictions, each party bears her or his own costs regardless of the outcome of the class action. This legislative choice is viewed as a means to encourage individuals to act as a representative plaintiff by bringing a suit on behalf of the entire class without risking a costs award commensurate with the overall claim advanced. The recent legislative amendments in Saskatchewan signal a shift away from this view: defendants may now recover their costs and the representative plaintiff may be on the hook.

Saskatchewan Amendments

The amendments to the Saskatchewan CAA were enacted by Bill No. 147, otherwise known as The Class Actions Amendment Act.2 As of May 14, 2015, courts in Saskatchewan may now order costs against a losing party under CAA section 40 where appropriate.3 In determining the costs to be awarded, courts may consider the factors set out in CAA subsection 40(2), as follows:

the public interest; whether the action involved a novel point of law; whether the action was a test case; access to justice for members of the public using class action proceedings; and any other factors the court or Court of Appeal considers appropriate.4 Implications of a Loser Pays Cost Regime in Saskatchewan

Saskatchewan is the most popular Prairie province for class actions.5 However, the extent to which this legislative amendment may create a chilling effect on class proceedings in Saskatchewan remains to be seen. One obvious implication of this amendment is that individuals may be deterred from bringing class proceedings because they now face a real risk of an adverse costs award. Pursuant to subsection 40(3) of the CAA, only the representative plaintiff is liable for costs of bringing the class action, though class members may be liable for costs with respect to the determination of their individual claims.6 By moving away from the no-cost...