Does a statement from Western Canadian Shopping Centres about the capacity of the representative plaintiff to bear costs order under section 5(1)(e) of the CPA apply to a class action?

I agree with the comments of Cullity J. in Mortson v. Ontario Municipal Employees Retirement Board, [2004] O.J. No. 4338. In referring to the reasons of the motions judge in this case and the statement from Western Canadian Shopping Centres about the capacity of the representative plaintiff to bear costs orders, Cullity J. said the following, at paras. 91 and 94: The statements in [Western Canadian Shopping Centres] and Pearson are routinely relied on by defendants’ counsel on motions for certification under the CPA. The interpretation placed on them by defendant’s counsel in this case would have the result of defeating, or frustrating, the legislative objective of access to justice. It would, in effect, limit recourse to class proceedings to cases where the proposed representative plaintiffs were either wealthy or could demonstrate that a commitment for funding assistance was in place – a sort of halfway house towards requiring security for costs. Until further authoritative guidance is provided, I do not believe I am compelled to accept such an interpretation of s.5(1)(e) of the CPA. ***** If the plaintiffs were suing as individuals they would not be compelled to demonstrate that they have concrete and specific funding arrangements in place to satisfy an award of costs that might be awarded against them in the future and, in the circumstances of this case, I do not believe the fact that they seek to represent a class – or the specific terms of s.5(1)(e) – should be considered to require them to demonstrate this.