And (judicially Economical) Justice for All: The Case for Class Proceedings as the Preferable Procedure in Mass Claims for Charter Damages

• Author: Allan Cocunato
• Pages: 339-362

339

And (Judicially Economical) Justice for All: The Case

for Class Proceedings as the Preferable Procedure in

Mass Claims for Charter Damages

Allan Cocunato

AbstrAct: In this article, the author advocates for class proceedings to

be presumptively viewed as the preferable procedure for resolving claims

of mass or systemic Charter violations. After reviewing the relevant law

related to the preferability requirement for class action certif‌ication, as

well as the jurisprudence surrounding the award of so-called Charter

damages pursuant to section 24(1) of the Charter, the author critically

examines the few instances where proposed class actions seeking Charter

damages have been certif‌ied in the hopes of understanding how these

actions interact with the factors determining preferability. The author

then demonstrates how class proceedings will generally be the forum that

best achieves justice for victims of systemic Charter breaches by analyzing

such claims through the lens of judicial economy, behaviour modif‌ica-

tion, and access to justice. Lastly, the author speculates that the use of class

proceedings to remedy mass or systemic Charter violations will continue

to proliferate as claimants continue to seek ecient and ef‌fective ways

of obtaining compensation for constitutional wrongs and courts become

more accepting of Charter class actions’ role in the judicial landscape.

CCAR 14-2.indb 339 1/8/2019 10:57:40 AM

CCAR 14-2.indb 340 1/8/2019 10:57:40 AM