Early disposition or prejudicial attrition? An analysis of bill 161 and pre-certification dispositive motions in class actions

AuthorFiona Sarazin
PositionBSc, JD, LLB candidate (2022)
Early Disposition or Prejudicial Attrition?
An Analysis of Bill 161 and Pre-Certif‌ication
Dispositive Motions in Class Actions
Fiona Sarazin
: The number of class actions f‌iled in Canada each year is increas-
ing, and the rate of certif‌ication is high. Until recently, certif‌ication hear-
ings have been the unequivocal f‌irst step in a collective action, subject
to the sequencing discretion of the presiding adjudicator. However, the
legislative framework governing class actions litigation in Ontario was
recently overhauled, with major changes to the Class Proceedings Act com-
ing into force in late 2020. Among these amendments was the addition
of an “Early Resolution” provision, which turns the certif‌ication-f‌irst rule
on its head. The newly enacted section 4.1 has the ef‌fect of statutorily
reversing jurisprudential trends by requiring early dispositive motions
to be heard prior to certif‌ication and narrowing the broad discretion
granted to judges under section 12. In this article, I evaluate section 4.1 by
cross-referencing trends in judicial reasoning with the policy arguments
of legislators and stakeholders in favour of this provision, as well as nas-
cent jurisprudence from the Ontario Superior Court which attempts to
parse section 4.1. This study surveys a total of 104 decisions across nine
jurisdictions, decided over the last twenty-one years, where the sequen-
cing of preliminary dispositive motions was at issue. Ultimately, I argue
that section 4.1 is based, in part, on rationales that are more cogent in
theory than in practice, and that legislators would do well to take heed
of judicial trends as practical evidence to inform solutions to systemic
concerns. This leaves us with a dramatic shift in Ontario class actions
law, predicated on untested rationales rather than existing jurisprudence.
Fiona Sarazin*
A distinctive feature of class actions is the court’s unparalleled level of
oversight and case management throughout the proceeding, as compared
with other types of claims.1 In taking on such an active role, judges have
access to an extensive arsenal of tools, of arrows in their quivers, dutifully
supplied in Ontario by the Class Proceedings Act, 1992 (CPA).2 Transcending
their traditional role as the passive umpire, judges must attune themselves
to the interests of absent class members and deeply engage in the nuances
of each case. Judicial discretion thus plays a pivotal role in the adjudica-
tion of class actions.
In this context, a judge’s authority under the CPA to schedule proceed-
ings, in attendance to the particular needs of each case, becomes all the
more important. Recent amendments, however, threaten to disrupt this
operative role. The surgical additions grafted onto the CPA in 2020 have
dramatically remodeled the landscape for collective actions in Ontario.
The result is something of a parody of the class proceedings framework
south of the border. Before the ink had even dried, these changes attracted
commentary from members of the judiciary and stakeholders alike.
* Fiona Sarazin, BSc, JD, LLB candidate (2022). I am grateful to Janet Walker for her
guidance and the editors of the Canadian Class Action Review for their diligence and
1 Smith v Canadian Tire Acceptance Ltd, [1995] OJ No 327 at para 42.
2 SO 1992, c 6 [CPA].

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