Reasonable to believe that adverse costs award could be overwhelming to representative plaintiff

Ontario civil | Civil Practice and Procedure | Class and representative proceedings | Representative or class proceedings under class proceedings legislation

Plaintiff alleged that defendants researched, designed, manufactured, and installed defeat device in certain diesel engine vehicles, which rendered elements of vehicles’ emission control systems inoperative or less effective outside laboratory test conditions. Plaintiff also alleged that vehicles polluted far in excess of levels permitted under Canadian law. Plaintiff commenced action against defendants for roles in alleged conduct. Plaintiff brought motion for order approving third party litigation funding agreement. Motion granted. It was reasonable to believe that adverse costs award in proceeding could be overwhelming to representative plaintiff. Funding agreement was necessary to provide plaintiff and class members with access to justice. Plaintiff received independent legal advice on nature and terms of funding agreement, as well as obligations and potential liability. Funding agreement was fair and reasonable and did not interfere with plaintiff’s right to instruct counsel.

Marriott v. General Motors of Canada Company (2018), 2018 CarswellOnt 6254, 2018 ONSC 2535, Glustein J. (Ont. S.C.J.).

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