The Canadian Class Action Review

- Publisher:
- Irwin Law Inc.
- Publication date:
- 2021-08-13
- ISBN:
- 1705-7369
Issue Number
- No. 18-2, August 2023
- No. 18-1, November 2022
- No. 17-2, March 2022
- No. 17-1, August 2021
- No. 16-2, March 2021
- No. 16-1, December 2020
- No. 15-2, March 2020
- No. 15-1, December 2019
- No. 14-2, March 2019
- No. 14-1, December 2018
- No. 13-2, March 2018
- No. 13-1, December 2017
- No. 12-2, March 2017
- No. 12-1, December 2016
- No. 11-2, March 2016
- No. 11-1, October 2015
- No. 10-1-2, January 2015
- No. 9-2, February 2014
- No. 9-1, December 2013
- No. 8-2, May 2013
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
Featured documents
- The Limits of Case Management: A Review and Principled Approach to the Court’s General Management Powers
- Consumer Class Arbitration in Canada: It’s About Time
- Catch and Release: Class Actions and Solvent Third Parties Under the Ccaa
- Judicial Scrutiny of Third Party Litigation Funding Agreements in Canadian Class Actions
- The Evolution and Devolution of Aggregate Damages as a Common Issue
- Determining a Fair Price for Carriage?: Applying a 'fee-driven' Factor and Reverse Auctions to Adjudicating Carriage Motions in Ontario
- Cost-shifting and Access to Justice: A Quantitative Review of Certification Motion Cost Awards in Ontario
- Assessing Fees When Class Actions Follow Government Action
- And (judicially Economical) Justice for All: The Case for Class Proceedings as the Preferable Procedure in Mass Claims for Charter Damages
- How Class Actions Have Shaped Litigation Financing Law in Canada