Introduction

• Author: Harvey T. Strosberg
• Pages: 1-3

1

INTRODUCTION

Welcome to Issue 19.1 of the Canadian Class Action Review. This issue

begins with Mary Ppasiou’s Strosberg-award-winning paper examining

the enforceability of class action waivers in Canada. Increasingly, compan-

ies have been including class action waivers in their terms and conditions,

requiring users to waive their right to bring a class action and commit

instead to another form of dispute resolution. Canada has seen a number

of high-profile cases grappling with this issue, including the recent Heller

v Uber Technologies Inc, which went to the Ontario Supreme Court in

2023. After analyzing the relevant jurisprudence, the author posits that

on a surface level, a plaintiff’s right to bring a class action is a proced-

ural right, while the right to have contracts upheld is a substantive right,

which must therefore take precedence. However, the author goes on to

argue that the substantive values of access to justice and behaviour modi-

fication, which underly the procedural right to bring a class action, create

a tension that complicates the question. Ppasiou asserts that in deciding

whether or not to uphold the class action waiver, courts must consider

whether doing so will cause harm to society or injustice to the plaintiffs.

Next, author Mohsen Seddigh’s article addresses a point of increasing

tension in Canadian class actions: the uneven and confusing application

of the commonality test at certification. The author analyses the two-

part commonality test, arguing that the part of the test requiring evi-

dence that the common issues exist constitutes, in effect, a screening of

the merits of the claim. After exploring the evidentiary implications, the

author goes on to discuss the extent to which the two-part text is at odds

with the purpose of the certification stage, arguing that it violates the

fairness of class actions. While the author does not argue for or against

screening for the merits at certification, he does suggest that doing so

would require certain policy considerations to ensure fairness for all par-

ties, and that regardless, the application of such a screening ought to be

clear and consistent.

Oscar Read tackles the tricky question of carriage motions by com-

paring Canadian jurisdiction and legislation to that of several foreign

countries. Although carriage motions are an important element of class

actions and are becoming increasingly common, Read notes that there