Class Proceedings

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 140-164

140

CHAPTER 6

CLASS PROCEEDINGS

A. INTRODUCTION

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.

B. THE LEGAL FR AMEWORK

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

[Dutton].