When a law firm engaged on a class action splits up, is the representative plaintiff entitled to decide which of the resulting new firms to retain? In Fantle v. Transamerica Life Canada, 2009 ONCA 377, decided May 7, 2009, the court held that the representative plaintiff is entitled to select, and indeed is responsible for selecting, class counsel. The criteria to be considered when the choice of counsel properly comes before the supervisory court for review are: competence of counsel; whether the choice was based on any improper considerations; and whether the choice resulted in any prejudice to the class.

In Poultney v. Wilson, [2009] O.J. No. 704 (S.C.J.), the court said, “No”. When a judge has made a costs award based on materials presented by counsel, an assessment under the Solicitor’s Act of the bill of costs presented by the solicitor is not appropriate in the absence of special circumstances or reasons for the court to exercise its inherent jurisdiction.