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

• Author: Suzanne Chiodo
• Pages: 171-188

171

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

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The Cana dian Class Action R eview | Volume 14 • No 1

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 Naken4 — 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 Ian 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 (1 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 II [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 [1983] 1 SCR 72 [Naken].