Class Reunion: Revisiting Class Action Justification After Twenty Years

• Author: Brian Smith
• Pages: 33-55

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CLASS REUNION: REVISITING

CLASS ACTION JUSTIFICATION

AFTER TWENTY YEARS

Brian Smith

Abstract: Since it was issued two decades ago, the Ontario

Law Reform Commission’s Report on Class Actions has been

the foundational document for any discussion of the Can-

adian class action. Judges and commentators regularly cite

the three goals or benef‌its of class actions that were outlined

in that report, namely, improved judicial economy, behaviour

modif‌ication, and improved access to justice. However, the

Report necessarily relied largely on data from foreign juris-

dictions to support its f‌indings, and virtually no studies have

tested whether or not these goals are being met by the Can-

adian clas s action. The author undertakes a critical an alysis of

the goals as stated by t he Report on Class Actions and uncover s

areas of conceptual and potent ial practical weakness. Thi s an-

alysis suggests some viable starting points for future studies

of class actions t hat can validate and improve their useful ness

in Canadia n society. Ultimately, the author concludes that the

continued assumption by the courts that these three goals

are being forwarded may be correct, but is not justif‌ied by

existing data. The fact that many valid criticisms have been

raised suggests that studies of Canadian class actions and

their results should be u ndertaken to ensu re that the class ac-

tion maintains a useful and benef‌icial role in Canada.