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
CCAR 14-2.indb 275 1/8/2019 10:57:37 AM

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