The Canadian Class Action Review - Irwin Books

Introduction

Simplifying access to justice: Michael Eizenga publishes the class actions Handbook, an essential, multi-jurisdictional resource for Canadian jurists

Towards a trauma-informed approach: adapting class action procedure for survivors of sexual abuse

Civil procedure for survivors of sexual abuse seeking damages is frequently criticized for its insensitivity to the needs of survivors. Class actions are often pointed to as a less harmful alternative. A review of the jurisprudence of sexual abuse class actions demonstrates how courts’ thinking on the issue has evolved over the past two decades and gives clues as to where these actions are headed. This paper explores the experience of class action procedure from the perspectives of both representative plaintiffs and general class members. The needs of these two groups can at times conflict and lead to problems. There are also inherent issues that arise from the individual experience of trauma being litigated on aggregate. Based on the review of these experiences, this paper makes five key recommendations on ways class action procedure can be amended in the context of sexual abuse actions to accommodate the needs of survivors and otherwise be more trauma informed

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

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

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

Two Steps Forward, one Step Back: 'Some Basis in Fact' and the Certification of Common Issues

In this paper, the authors review the state of the law regarding plaintiffs' evidentiary burden at certification. Specifically, the authors canvass the jurisprudence on the “some basis in fact” standard that plaintiffs are required to satisfy in respect of the common issue criterion under class proceedings legislation. Originally pronounced by the Supreme Court of Canada in Hollick v Toronto (City), the “some basis in fact” test has become the source of considerable debate. Two dominant perspectives have emerged over time. According to the first, the “some basis in fact” standard is a one-stage analysis that requires examination of only the class-wide nature of the proposed issues. According to the second, the “some basis in fact” inquiry involves a two-step analysis requiring plaintiffs to furnish evidence in support of the (1) existence of the alleged common issues and (2) the proposition that the issues can be resolved on a classwide basis. By tracing the evolution of the “some basis in fact” test and analyzing comparative case law, it appears that the law is now settled: the two-step test governs the assessment of common issues at certification

An Examination of the Viability of a Class Action for Adverse Events Following Covid-19 Immunizations

The COVID-19 pandemic has forced governments around the world to take extraordinary measures to mitigate the virus's deadly impact. These measures include the approval, procurement, and distribution of vaccines to citizens. This paper examines the likelihood of a class action against the Canadian federal government being certified under British Columbia's Class Proceedings Act, RSBC 1996, c 50 for Adverse Effects Following Immunization [AEFIs] caused after receiving a dose of a government- approved vaccine. Intended as a thought experiment, this essay is not a case study of an actual action, but rather a study of how the Act and the courts would approach such a case, were it brought. It explores what the proper cause of action would be, what potential class definition would be chosen, what the proposed common issues would be, and the viability of alternative procedures for resolving claims for AEFIs. This has been done through an examination of the currently available data relating to the vaccine approval process, and a review of relevant jurisprudence

Unchartered Grounds: Covid-19 and Class Actions

For nearly two years, the COVID-19 pandemic has brought unprecedented disruption to those living in Canada and around the world. To curb its spread and mitigate its impacts, all levels of government have taken drastic measures to limit movement and social gathering. This has prompted plaintiffs to launch class proceedings alleging unjustifiable violations of Charter rights and to claim awards in damages. This paper examines whether these proceedings are likely to be successful, and ultimately determines that they will not. This paper then argues that the status quo which supports this result is defensible and just. To estimate their likelihood of success, it first surveys the history of Charter class actions in Canada and then considers several that have emerged from the COVID-19 context. It then reviews the certification test, particularly the cause of action, common issues, and preferable procedure stages, and finds that it is reasonable to expect courts to certify at least some of these class actions. However, since these proceedings will likely be denied damages, this would in turn reduce the likelihood of future certification at the preferable procedure stage. Specifically, the Supreme Court of Canada outlined in Vancouver (City) v Ward that courts may refrain from granting damage awards where they would frustrate good governance. This is the main barrier to COVID-19 class actions, as liability in damages would dissuade governments from acting in the best interests of Canadians

A More Modest Proposal: Bilingual Submissions Made to the Quebec Minister of Justice in the Context of Possible Reforms to the Class Action Regime

In 2019, at the behest of the Quebec Ministry of Justice, Professor Catherine Piché of the Université de Montreal's Class Actions Lab, a distinguished legal scholar, published a detailed report on the Quebec class action. Among other things, this report addressed proportionality, authorization (certification), and class counsel fees. The following are the bilingual submissions filed by the authors. These submissions suggest reinforcing the court's ability to stay or dismiss class actions at the pre-authorization stage, buttressing (rather than eliminating) the second criterion of article 575 of the Code of Civil Procedure, rethinking the assessment of risk when awarding counsel fees, and doing away with Quebec's controversial “first-to-file” rule in favour of an expedited analysis of competing applications for authorization