Class Actions in Canada: Conflicting Purposes and Unpredictable Outcomes

• Author: Andrew Roman, Jonathan Heeney, and Hassan Ahmad
• Pages: 5-73

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CLASS ACTIONS IN CANADA:

CONFLICTING PURPOSES AND

UNPREDICTABLE OUTCOMES

Andrew Roman, Jonathan Heeney,

and Hassan Ahmad

Abstract: The certif‌ication of class proceedings in Canada

has become too costly and too u npredictable for both parties.

Often, the wrong cases are being certif‌ied, while cases that

ought to be litigated as clas s actions are deterred by “certif‌ica-

tion chill,” and therefore never see a courtroom.

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CLASS ACTIONS IN CANADA:

CONFLICTING PURPOSES AND

UNPREDICTABLE OUTCOMES

Andrew Roman, Jonathan Heeney,

and Hassan Ahmad*

A substantial body of Canadian jurisprudence describes class actions as

having th ree specif‌ic purposes: access to just ice, behaviour modif‌ication,

and judicial economy. However, the authors of this paper will arg ue that

these are not the real purposes of individual actions, but merely broad

societal goals. Indiv idually, class actions have only one purpose: to make

it economically feasible to recover damages that, but for class proceed-

ings, would be non-recoverable in individual legal proceedings. To be

able to improve the class proceedi ngs system, judges and legislators must

understand and accept the economic purpose of class proceedings.

The goal of this paper is to analyze the Canadian and, to a lesser

degree, the US class act ion experience, from the perspective of achiev ing

the economic purpose of cla ss actions. The authors conclude that neither

the Canadian nor the US courts have consistently understood this eco-

nomic objective and thus, have not worked to achieve it in the application

of their respective class action laws.

* Andrew Roman h as been practising l aw for over forty years, and has be en with

Miller Thomson in Toronto for last t wenty-f‌ive years. He was the Ca nadian

Bar Assoc iation’s representative on the Ont ario attorney general’s advis ory

committee th at developed and oversaw the dra fting of Ontario’s Class

Proceedings Act. He has acted for pl aintiffs and defendant s in several large

class act ions, and been consulted by the gover nments of several provinc es,

and of Austral ia, in developing their clas s actions laws.

Jonathan Heene y is an associate at La xton Glass LLP in Toronto. He

practise s in the area of insuranc e litigation with a concentrat ion on insurance

defence work in connection w ith both tort and accident benef‌it s claims.

Hassan A hmad is an associ ate lawyer at Zarek Taylor Grossman

Hanrah an LLP practising civ il and commercial litigat ion. He appears regularly

in the Ontar io Superior Court and the Fin ancial Services C ommission.

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