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

AuthorShaun E Finn, BCF LLP
PositionLitigation partner at BCF LLP and co-leader of the firm's Class Action Defence Group
Are Class Actions Progressive? An Enquiry into the
Nature and Function of Modern Class Actions
Shaun E Finn, BCF LLP
AbstrAct: 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 propos-
ition. 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.
Shaun E Finn, BCF LLP*
The common law is concerned to do justice in the individual case, not to
pursue some far-reaching reform of the manners, morals and customs of the
community as a whole.
— Sir Roger Scruton, Fools, Frauds and Firebrands:
Thinkers of the New Left (London: Bloomsbury, 2016) at 57
As its title suggests, the purpose of this article is to determine whether
the modern class action is “progressive.” In other words, is it designed
to redress historical wrongs and achieve social justice? Given its descrip-
tion by the courts—including, most notably, the Supreme Court of Can-
ada—its legislative origins, its important advantages, its procedural and
institutional ramif‌ications, and the jurisprudence to which it has given
rise, such a case can certainly be made. This case, however, is by no means
unassailable. A closer look at the history, scope, stakeholders, utiliza-
tion, and economic dynamics of class actions suggest that they are more
complex, and perhaps less obviously progressive, than they might at f‌irst
appear. Rather than instruments of “equity” in the broadest sense of this
term, they are an enhanced form of procedural equity in the more limited,
* Shaun E Finn is a litigation partner at BCF LLP and co-leader of the f‌irm’s Class
Action Defence Group. He wishes to thank Alessia Talarico, articling student, and
Camille Rivard and Amély Lewis, law students, for their kind assistance.

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