Comparing the Reports of the Ontario Law Reform Commission and the Attorney General's Advisory Committee

AuthorSuzanne Chiodo
Pages171-188
Chapter
5
COMPARING
THE
REPORTS
OF
THE
ONTARIO
LAW
REFORM
COMMISSION
AND
THE
ATTORNEY
GENERAL
S
ADVISORY
COMMITTEE
The
history
of
the
Class
Proceedings
Act
provides
significant
insights
into
the
ways
in
which
law
reform
can
be
brought
about
effectively.
In
this
regard,
the
contrast
between
the
Ontario
Law
Reform
Commission
(OLRC)
Report
and
that
of
the
Attorney
General
s
Advisory
Commit
tee
(Advisory
Committee)
is
striking.
Many
factors,
both
internal
to
the
legislative
process
and
external
as
part
of
the
wider
culture,
ensured
that
the
Advisory
Committee
Report
would
be
successful
in
bringing
about
reform
where
its
predecessor
failed.
A.
WIDER
SOCIAL
AND
CULTURAL
CONTEXT
Several
changes
had
taken
place
in
the
wider
culture
by
the
time
the
OLRC
Report
was
tabled
in
the
legislature
in
June
1982.
For
example,
con
sumer
and
environmental
rights
had
come
to
the
forefront
of
the
public
consciousness,
with
reports
being
released
throughout
the
1970s
promo
ting
consumer
rights
in
general
and
class
actions
in
particular,
as
well
as
a
number
of
environmental
disasters
raising
awareness
of
the
fragile
state
of
the
planet.
The
closely
related
issue
of
standing
was
the
subject
of
several
court
decisions
in
the
1970s
and
1980s,
which
gave
public
interest
litigants
standing
in
certain
circumstances.
In
the
same
vein,
the
Char
ter
became
part
of
Canadian
law
in
1982,
giving
citizens
certain
rights
against
the
power
of
the
state.
The
Charter
would
also
see
an
increasing
amount
of
power
taken
out
of
the
hands
of
the
legislature
and
given
to
171
172
THE
CLASS
ACTIONS
CONTROVERSY
judges,
who
would
play
more
of
an
activist
role
in
public
interest
liti
gation.
These
developments,
which
challenged
the
traditional
two-party
model
of
litigation
and
allowed
judges
a
more
active
role
in
the
cases
before
them,
were
to
prove
positive
for
the
advent
of
class
actions.
1
in
addition,
by
the
time
the
OLRC
Report
was
released,
Ontario
had
the
examples
of
the
United
States
and
Quebec
on
which
to
rely.
The
two
jurisdictions
were
referred
to
extensively
in
both
the
OLRC
and
the
Advisory
Committee
reports,
2
with
reformers
using
various
statistics
to
combat
the
argument
that
class
actions
would
open
the
floodgates
of
litigation
in
the
province.
The
findings
of
the
Williston
Report,
which
concluded
that
the
present
procedure
respecting
class
actions
is
in
a
very
serious
state
of
disrepair,
3
were
also
a
boost
to
proponents
of
class
actions.
The
Supreme
Court
s
judgment
in
General
Motors
of
Canada
Ltd
v
Naken
4
that
legislation
was
needed
in
order
to
enable
class
actions
in
Ontario
also
seemed
to
be
a
victory
for
those
pushing
for
reform.
However,
the
opponents
of
class
actions
remained
intransigent
in
the
face
of
the
Naken
decision,
as
evidenced
by
the
submissions
of
busi
ness
groups
and
the
bar
to
the
Ministry
of
the
Attorney
General
(MAG).
The
OLRC
Report
and
Naken
brought
the
divisions
on
the
subject
of
class
action
reform
to
the
fore,
but
did
nothing
to
heal
them.
This
was
likely
the
primary
reason
why
Roy
McMurtry
did
not
subsequently
introduce
class
action
legislation
because
the
issue
was
simply
too
contentious
and
it
is
not
surprising
that
a
government
on
the
eve
of
an
election
would
want
to
avoid
it.
By
contrast,
by
the
time
lan
Scott
was
setting
up
consultations
on
class
action
reform
in
the
late
1980s,
the
Liberal
government
was
in
a
very
strong
position.
It
had
been
in
power
for
two
years
with
the
help
of
the
NDP
(a
party
that
was
also
sympathetic
to
the
case
for
reform),
and
osten
sibly
had
years
ahead
of
it.
In
addition,
the
factors
that
had
been
favourable
to
the
movement
for
reform
in
the
early
1980s
were
now
more
mature
and
arguably
more
encouraging:
there
was
the
example
of
Quebec
(and,
to
a
1
Interview
of
WA
Bogart
(i
April
2016)
[Bogart
interview].
2
Ontario
Law
Reform
Commission,
Report
on
Class
Actions
(Toronto:
Ministry
of
the
Attorney
General,
1982)
at
50-69,70-75,
214-78
[OLRC
Report];
Ontario,
Ministry
of
the
Attorney
General
(MAG),
Policy
Development
Division,
Report
of
the
Attorney
General
s
Advisory
Committee
on
Class
Action
Reform
(Toronto:
Ministry
of
the
Attor
ney
General,
1990)
at
56-73
and
Part
11
[Advisory
Committee
Report].
3
Walter
B
Williston,
Report
of
the
Civil
Procedure
Revision
Committee
(Toronto:
Minis
try
of
the
Attorney
General,
1980)
at
16.
4
SCR
[Nafcen].

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