The Canadian Class Action Review - Irwin Books

Introduction

The (un)enforceability of class action waivers in Canada

Despite the prevalence of class action waivers in modern contracts, their enforceability is an under-investigated and controversial issue in Canadian law. The controversy arises from the battle of two important public interests: the interest in giving effect to contracts as agreed between the parties and the interest in organizing justice through class proceedings. This essay studies the position taken by Canadian courts in the limited jurisprudence around the issue, and it also explores the scope of the statutory and common law bases for the unenforceability of class action waivers. Based on the analysis, the essay argues that the procedural right to commence or participate in a class action is not sufficient to override the effect of a class action waiver. A waiver may be struck down only in appropriate circumstances where there is a statute, common law principle, or strong public policy that prevents its enforcement. Hence, the analysis highlights the primacy of the parties’ freedom of contract in Canadian law, as well as the importance of careful drafting and reading of contractual terms in modern contracts

The commonality test in class action certification: the battleground of screening merits and fair process

The class action certification test requires "claims [that]... raise common issues." The common law jurisdictions in Canada have become divided as to the evidentiary basis in fact required to establish that requirement. Some have recently held that the plaintiff must adduce some basis in fact that: (a) the proposed issues are common to the class; and (b) the proposed issues exist. Others have required evidence of commonality only, having identified incongruencies in principle in requiring evidence of the existence of issues proposed to be common to the class. This article takes a closer look at what it means to superimpose an evidentiary burden of existence on the commonality inquiry. The article reviews a sample of certified common issues, concluding that the existence inquiry is at its core a screening of the substance and merits of the common elements of the claim. In some cases, that merits screening is procedurally harmless. However, that screening often becomes incompatible with other certification caselaw that has adopted a rigid exclusionary approach to pre-certification discovery and an exacting test of evidence admissibility. The end result, when these lines of authority operate together, is a compromise in fair process: a process that demands evidence, and only evidence that would be admissible at trial, that it denies discovery of, even in cases where the evidence is solely in the possession and control of the defendant. This article calls for a holistic, rather than a piecemeal, approach to these elements of certification so that merits screenings - if they are desirable and permitted - are conducted openly and with fair and proportionate procedural safeguards

Bridging borders: reforming Canada's approach to resolving carriage challenges in light of global practices

Canada faces a carriage crisis. Mass breaches frequently affect persons across Canada in each province. Each mass breach results in duplicative class actions filed in multiple provinces. The result is a provincial fight for carriage and a national fight for membership of potential class plaintiffs. Carriage within provinces is decided at a carriage motion; carriage on a national scale is decided on an ad hoc basis in the isolation of the superior court of whichever province the national class action(s) is/ are filed. In this essay, I take a comparative approach to proposing reform to provide a procedure for the efficient resolution of intra- and inter-provincial carriage disputes. I take stock of Canada’s current approach to resolving carriage disputes and then draw from the experience of other common law jurisdictions: Aotearoa New Zealand, Australia, the United Kingdom, and the United States. Drawing on their experience, I propose three changes: two legislative and one judicial. I propose first that each province enact legislation restricting provincial jurisdiction over class members; second, that each province enact legislation enabling the transferring of jurisdiction over cases between the provinces; and third, a judicial change from seeing comity as a principle of deference to seeing it as a principle of leadership and cooperation. The overall goal of the reform will be to centralise decisions within one province for the efficient resolution of carriage issues, both within and between provinces

Class action notice and access to justice: an accessibility and design analysis of class action notice campaigns

This is a small-scale empirical study of the accessibility and design of class action notice campaigns in Canada. Class actions are unique among procedural tools because the majority of class members are not parties to the litigation, but their legal rights are nevertheless affected. In this context, the only way that class members are informed of their legal rights and options is through the unidirectional communication tool of notice. This paper considers whether class action notice campaigns in Canada adequately inform class members of their rights and legal options, and whether the goal of access to justice is advanced - or impeded - by the design, accessibility, and quality of notice. After situating my study in a discussion of literacy rates and barriers in Canada, I proceed to an original analysis of class action notice campaigns. Using a sample of twenty short form notices of settlement and twenty claims administration websites from actions with claims periods open in 2022, I quantitatively analyze each notice campaign for content and design. I then use an online readability checker tool to empirically review the accessibility of the written language used in notice campaigns. The analysis in this paper finds that many class action notice campaigns are not accessible to the average Canadian reader, suggesting that inadequate notice may impede class members’ ability to access procedural and substantive justice. Throughout the results and discussion, I provide recommendations and samples of best practices to support the class actions bar and bench in achieving more accessible notice

To certify or not to certify: third parties, necessary parties, and the certification of class actions in common law Canada

Canadian common law courts have taken a handful of approaches in class certification proceedings where third or necessary parties are involved. The caselaw demonstrates that Canadian common law courts have generally been less willing to certify class actions where third parties are involved or where necessary parties have not been named as defendants in the main action. The Ragoonanan rule may also incidentally prevent class certification where there are third or necessary parties. In this paper, the three principal goals of class actions are reviewed and applied to class certification proceedings involving third or necessary parties. Considering the principals of class actions, should the existence of third or necessary parties prevent the certification of a class action?

Introduction

The Precarious State of the Ragoonanan Principle in Ontario

Time for Change: Advancing the Objectives of Class Actions by Removing the “Residency Requirement” from British Columbia’s Class Proceedings Act

L’autorisation d’actions collectives mondiales au Canada : deux solitudes aux antipodes