Chapter 11: Class Proceedings

• Pages: 286-311
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CH AP TER 11

CLASS PROCEEDINGS

A. INTRODUCTION

Group claims have always been a feature of Ca nadian civil procedure.

They emerged in the late seventeenth century in t he courts of equity

when it became apparent that the common law procedure involving in-

dividual issue s between named parties was inadequate to do justice in

cases affecting groups of persons. Initially, group proceedings took the

form of compulsory joinder, but this eventually gave way to a process

by which a representative plainti ff would seek relief on behalf of simi-

larly situated persons. With t he fusion of law and equity, this proced-

ure was codied in a r ule that provided that “where there are numerous

parties hav ing the same interest in one action, one or more of such par-

ties may sue or be sued, or may be authori zed by the Court to defend

in such action, on behalf or for the benet of all part ies so interested.”1

In the 1970s, it became clear that representative proceedings could

not provide adequately for the complexities of processing claim s that

were similar but not identical. The Supreme Court2 held that common

law innovations could not address the many requirements of class pro-

1 Rule 10 of the Rules of Procedure under the Supre me Court of Judicature Act, 1873

(UK), 36 & 37 Vict, c 66.

2 In General Motors of Canad a Ltd v Naken, [1983] 1 SCR 72, the Supreme Court held

that the ru le providing for representat ive actions could not be used to ag gregate

claims i nvolving negligently manuf actured cars that wer e purchased under indiv id-

ual contract s and that would require da mages to be assess ed individually.

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Class Proceedings 287

ceedings necessa ry to establish a comprehensive scheme. In 1982, the

Ontario Law Reform Com mission (OLRC) published a study proposing

a legislative scheme to meet these requi rements.3 As the Supreme Court

of Canada later noted in its 2000 decision in Western Canadia n Shop-

ping Centres v Dutton, the world had changed:4

The rise of mas s production, the diversication of cor porate owner-

ship, the advent of the mega-corporat ion, and the recognition of

environmental w rongs have all contributed to it s growth [i.e., the

growth of cla ss actions]. A faulty product may be sold to numerous

consumers. Corpor ate mismanagement may br ing loss to a large

number of shareholders. Dis criminatory p olicies may affect entire

categories of employees. Envi ronmental pollution may have cons e-

quences for citizens a ll over the country. Conicts like t hese pit a

large group of complaina nts against the alleged w rongdoer. Some-

times, the compla inants are identica lly situated vis-à-vis the defend-

ants. In other ca ses, an important aspect of thei r claim is common to

all complaina nts. The class action offers a means of efc iently resolv-

ing such disputes i n a manner that is fair to all pa rties.

The OLRC Report identied three objectives for class proceedi ngs that

have since been cited regularly in t he jurisprudence. These objectives are

judicial economy, access to justice, and behaviour modication. Each of

these objectives has conti nued to inform the approach to class proceedings

in Canada. This ch apter will consider the criteria eva luated in the certica-

tion process, including the requirements of a reasonable cause of action,

an identiable class, common is sues, whether it is the preferable means

of resolving the common issues, and whether the representative plaintiff

can fairly and adequately represent t he interests of the class. It wil l also

consider emerging issues i n multijurisdiction class proceedings, the sett le-

ment process, and questions of costs and nancing.

B. THE LEGAL FR AMEWORK

The idea of aggregating claim s seems straightforward enough, but the

procedure for doing so affects almost every as pect of civil litigation. To

address the many i mplications of aggregating c laims, class proceedings

have been introduced prima rily through the enactment of provincial

3 Ontario L aw Reform Commission, Rep ort on Class Actions (Ontario: Mi nistry of

the Attorney Gene ral, 1982).

4 Western Canadi an Shopping Centres v Dutton, [2001] 2 SCR 534 at para 26 [Dutton].