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

AuthorSuzanne Chiodo
Chapter 5
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.
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
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].

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT