The Canadian Class Action Review

Irwin Law Inc.
Publication date:

Latest documents

  • Guidelines for contributors
  • Class Actions Related to Police Conduct during Citizen Protests: $6,000,000 Settlement with the City of Montreal
  • 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
  • Introduction
  • L’autorisation d’actions collectives mondiales au Canada : deux solitudes aux antipodes
  • Considerations for Crafting Accessible and Effective Notices
  • Early disposition or prejudicial attrition? An analysis of bill 161 and pre-certification dispositive motions in class actions

    The number of class actions filed in Canada each year is increasing, and the rate of certification is high. Until recently, certification hearings have been the unequivocal first step in a collective action, subject to the sequencing discretion of the presiding adjudicator. However, the legislative framework governing class actions litigation in Ontario was recently overhauled, with major changes to the Class Proceedings Act coming into force in late 2020. Among these amendments was the addition of an “Early Resolution” provision, which turns the certification-first rule on its head. The newly enacted section 4.1 has the effect of statutorily reversing jurisprudential trends by requiring early dispositive motions to be heard prior to certification and narrowing the broad discretion granted to judges under section 12. In this article, I evaluate section 4.1 by cross-referencing trends in judicial reasoning with the policy arguments of legislators and stakeholders in favour of this provision, as well as nascent jurisprudence from the Ontario Superior Court which attempts to parse section 4.1. This study surveys a total of 104 decisions across nine jurisdictions, decided over the last twenty-one years, where the sequencing of preliminary dispositive motions was at issue. Ultimately, I argue that section 4.1 is based, in part, on rationales that are more cogent in theory than in practice, and that legislators would do well to take heed of judicial trends as practical evidence to inform solutions to systemic concerns. This leaves us with a dramatic shift in Ontario class actions law, predicated on untested rationales rather than existing jurisprudence

  • Are class actions progressive? An enquiry into the nature and function of modern class actions

    The precise nature and function of class actions have long been explored by courts, practitioners, and scholars. In order to put a contemporary twist on what is now a decades-long debate, this article asks whether class actions are “progressive” (as that term is currently understood) and proceeds to give arguments for and against the proposition. Ultimately, it concludes that despite their socio-economic purpose and impact, class actions are neither progressive nor anachronistic, but rather a reinvigorated form of representative actions, as intimated by the Supreme Court of Canada itself

  • Pre-certification motions that dispose of or limit the issues at trial: six factors for judges to consider

    Before Bill 161, Ontario courts rarely heard Rule 20 and Rule 21 motions, also known as dispositive motions, prior to certification of a class action. Among the sweeping changes brought in by Bill 161 was the creation of a presumptive right for parties to bring pre-certification motions to dispose of the proceeding, in whole or in part, or to narrow the issues. Under this new presumptive right, judges shall hear these motions first unless they order them to be heard in conjunction with certification motions. Unfortunately, the legislature did not delineate when it is appropriate for judges to order a conjunctive hearing. We must therefore ask: Under what circumstances should a judge order dispositive pre- certification motions to be heard in conjunction with certification? This paper argues that judges should consider six factors when scheduling a dispositive motion, including the type of motion, the potential impact of the motion, the plaintiff’s funding, the type of proposed class proceeding, the benefits of delayed disposition, and whether a pre-certification motion is in the interest of justice. To establish the six factors, this paper reviews caselaw prior to 2020 on the scheduling of pre-certification motions and academic commentary on dispositive motions in both Canada and the United States. It offers a survey of pre-Bill 161 jurisprudence, a discussion of the strengths and weaknesses of dispositive pre-certification motions, and an analysis of the six factors. Ultimately, this paper provides guidance for motions judges on when they should hear dispositive pre-certification motions in conjunction with certification

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