Class Actions in Canada: Conflicting Purposes and Unpredictable Outcomes

AuthorAndrew Roman, Jonathan Heeney, and Hassan Ahmad
Andrew Roman, Jonathan Heeney,
and Hassan Ahmad
Abstract: The certif‌ication of clas s proceedings in Can ada
has become too costly and too u npredictable for both parties.
Often, the wrong cases are being cert if‌ied, 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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Andrew Roman, Jonathan Heeney,
and Hassan Ahmad*
A substantial body of Canadian jur isprudence descr ibes class act ions 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 indiv idual 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 pur pose of class proceed ings.
The goal of this paper is to an alyze the Canad ian 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 consistent ly understood this eco-
nomic objective and thus, have not worked to achieve it in the application
of their respective cl ass 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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