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

• Author: Shaun E Finn, BCF LLP
• Position: Litigation partner at BCF LLP and co-leader of the firm's Class Action Defence Group
• Pages: 121-164

121

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.

123

ARE CLASS ACTIONS PROGRESSIVE?

AN ENQUIRY INTO THE NATURE AND

FUNCTION OF MODERN CLASS ACTIONS

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

A. INTRODUCTION

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.