Introduction

• Pages: 275-277

275

INTRODUCTION

Greetings from our f‌inal issue of 2018! We are wrapping up the year with

this special all-student-submission edition (try saying that quickly ten

times!) of the Class Action Review. It is exciting to see what these fresh

voices have to say about Canadian class actions. This group has produced

a diverse issue, with papers that focus on topics that range from adopt-

ing a specif‌ic rule governing fees when class actions follow government

action, to a look at section 99(2) of the Environmental Protection Act, to

how class actions have shaped litigation f‌inancing law in Canada. We are

very impressed with these exciting new voices, and we hope you will be

as well. See you in 2019.

In “Assessing Fees When Class Actions Follow Government Action,”

Misha Boutilier contends that class actions that follow government

actions are less risky for class counsel and are inferior to independently

initiated class actions at ensuring behaviour modif‌ication and access to

justice. Accordingly, Boutilier argues that Canadian courts should follow

the US Courts of Appeals for the Second and Third Circuits and adopt a

specif‌ic rule governing fees when class actions follow government action.

This rule would both reward plaintif‌fs’ attorneys who independently

initiate class actions with increased fees, and would reduce fees for class

actions that follow government action in proportion to the benef‌it that

class counsel receive from the prior government action.

Both Canadian and American courts and legislatures face a funda-

mental question: whether the benef‌its of including dif‌ferent approaches

to the enforceability of mandatory arbitration clauses and class action

waivers in contracts of adhesion, such as commercial certainty and free-

dom of contract, should supersede the right to access the civil justice

system on an individual or class-wide basis. In “Access to Justice Versus

Freedom of Contract: A Comparative Analysis of Canada and US Enforce-

ment of Mandatory Arbitration Agreements and Class Action Waivers,”

Natasha Rambaran comparatively analyzes the law in Canada and the

United States surrounding the enforceability of mandatory arbitration

clauses and class action waivers.

In “And (Judicially Economical) Justice for All: The Case for Class

Proceedings as the Preferable Procedure in Mass Claims for Charter

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