Class Proceedings

AuthorJanet Walker/Lorne Sossin
ProfessionOsgoode Hall Law School, York University/Faculty of Law, University of Toronto
Group claims h ave always been a feature of Canadian civil procedure.
They emerged in the late seventeenth century in the courts of equity
when it became apparent that the common law procedure involving in-
dividual iss ues between named parties wa s inadequate to do just ice in
cases affecti ng groups of persons. Initially, group proceedings took the
form of compulsory joinder, but this eventually gave way to a process by
which a representative plaintiff would seek relief on behalf of similarly
situated persons. With the fusion of law and equity, this procedure was
codif‌ied in a rule that provided that “where there are numerous parties
having the same interest in one action, one or more of such parties may
sue or be sued, or may be authori zed by the Court to defend in such
action, on behalf or for the benef‌it of all parties so interested.”1
A few decades ago, it became clea r that representat ive proceedings
could not adequately provide for the complexities of processing claims
that were similar but not identical. The Supreme Court2 held that com-
1 Rule 10 of the Rules of Procedure under the Sup reme Court of Judicature Act, 1873
(U.K.), 36 & 37 Vict., c. 66.
2 In General Motors of Cana da Ltd. v. Naken, [1983] 1 S.C.R. 72, the Supr eme
Court held that t he rule providing for represe ntative actions could not be
used to aggr egate claims involving neg ligently manufactured c ars that were
purchased u nder individual contract s and that would require dam ages to be as-
sessed ind ividually.
Class Proc eedings 141
mon law innovations could not address the many requirement s of class
proceedings neces sary to establish a comprehensive scheme. In 1982
the Onta rio L aw Reform Commission (OLRC) published a study pro-
posing a legisl ative scheme to meet these requirements.3 As th e S upr em e
Court of Canada l ater noted in its 2000 decision in Western Cana dian
Shopping Centres v. Dutton, the world had changed:4
The rise of mass production, t he diversif‌ic ation of corp orate owner-
ship, the advent of the mega-corporation, and the recognition of
environmental wrongs have al l contributed to it s growth [i.e., the
growth of class actions]. A fault y product may be sold to numerous
consumers. Corporate mism anagement may bring loss to a large
number of share holders. Discriminatory policies may affect enti re
categories of employees. Environmental pol lution m ay h ave conse-
quences for citizens all over the countr y. Conf‌lict s l ike these pit a
large group of complainants against t he alleged wrongdoer. Some-
times, t he complainant s are identically situate d vis-à-vis t he defend-
ants. In other case s, an important asp ect of their claim is common to
all complainant s. The class action offers a means of eff‌iciently resolv-
ing such disputes i n a manner that is fair to all pa rties.
The OLRC Report identi f‌ied three objectives for class proceedings that
ha ve si nce be en cit ed re gu la rly in th e ju ri sp ru de nce . T he se o bj ect iv es ar e:
judicial economy, access to justice, and behaviour modif‌icat ion. Each of
these objectives ha s continued to inform t he approach to class proceed-
ings in Canada. This chapter will consider the criteria evaluated in the
cer tif‌i cati on pro cess , inc ludin g the requ irem ents of a re ason able c aus e of
action, an identif‌iable class, common issues, whether it is the preferable
means of resolving the common is sues, and whether the repre sentative
plaintiff can fairly and adequately repres ent the interests of the class. It
will also consider emerging issues in multijurisd iction class proceed-
ings, the settlement process, and quest ions of costs and f‌inancing.
The idea of ag gregating cl aims seems straightforward enough, but the
procedure for doing so affects almost every aspect of civil litigation. To
3 Ontario L aw Reform Commission, Rep ort on Class Actions (Ontario: Mi nistry of
the Attorney Gene ral, 1982).
4 Western Canadian S hopping Centres v. Dutton, [2001] 2 S.C.R. 534 at p ara. 26

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