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

AuthorAllan Cocunato
Pages339-362
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

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