Palpable and Overriding Confusion: Appellate Review of Certification Orders in Canada
| Author | Shea Coulson |
| Pages | 71-102 |
71
PALPABLE A ND OVER R IDING
CONFUSION: A PPELL ATE REV IEW
OF CERTIFICATION ORDERS IN
CA NA DA
Shea Coulson
Abstract: The struggle for certification in Canadian cla ss ac-
tions is the centrepiece of a procedur al mechanism designe d
to bridge a significant ch asm of access to justice for a broad
range of claims t hat would otherwise not reach the cour ts or
would do so in a dimini shed capacity. Certification is of such
significance t hat appeal of an order granting or deny ing cer-
tification is almo st inevitable in every clas s action that comes
before the courts. However, the law in Can ada is decidedly
muddled when it comes to delineating t he underlying nature
of a certification order, and it is not clear at what point appel-
late intervention in a cer tification order constitutes interfer-
ence with case m anagement and in what instance s it is an
appropriate correction of a legal error. The question remai ns:
what is the appropriate role for appellate court s in the cer-
tification process? Both t he provincial legislature s and courts
across the country d isagree on this point and a s a result have
created a confusing p atchwork of rules respecting appell ate
review of certific ation orders. This paper will examine how
and why the law of appellate rev iew of certification orders is
so confused acros s the country and offer a practical s olution
for reform that is consistent w ith both the theory and the rea l-
ity of class actions.
73
PALPABLE A ND OVER R IDING
CONFUSION: A PPELL ATE REV IEW OF
CERTIFIC ATION ORDERS IN CANADA
Shea Coulson*
The struggle for certific ation in Canadi an class actions is the centrepiece
of a procedural mechani sm designed to bridge a signific ant chasm of
access to justice for a broad range of clai ms that would otherwi se not
reach the courts or would do so in a d iminished capacity. Certific ation
is of such significa nce that appeal of an order granting or deny ing cer-
tification is almo st inevitable in every clas s action that comes before the
courts. Defendant s rely on appeals as a last ditch effort to avoid an almost
certainly huge settlement. Plaintiffs rely on appeals both to put pressure
on defendants and, ultim ately, to keep their claims alive.
However, the law in Canada is decided ly muddled when it comes
to delineating the underlying nature of a certificat ion order. Its dual
procedural and substa ntive character is not easily reconci led and is not
often clearly address ed by the courts. This confus ion, in turn, creates
tension between appellate cour ts and certification court s as to which is
the proper venue for case management of cla ss actions. In other words,
it is not clear at what point appellate inter vention in a certification order
constitutes interference w ith case management, and i n what instances it
is an appropriate correction of a legal er ror. That granting or denyi ng cer-
tification is a procedura l order with deep substantive impact often leads
appellate courts into murk y waters where they risk heari ng matters de
novo in order to ma ssage access to justice concerns i nto their reasoning.
The question remains: what i s the appropriate role for appellate courts i n
the certification process?
* Shea Coulson is a n associate with the Vancouver l itigation boutique Gud-
mundseth Micke lson LLP, specializing in ad ministrative and re gulatory law,
government liabi lity, complex commercial matters, l arge scale claims, and
appeals. He wa s formerly an associate at Far ris LLP and a judicial l aw clerk at
the British C olumbia Court of Appeal. Shea holds a J D from the University of
British Columbi a, an MA from the University of Weste rn Ontario, and a BA
from the Universit y of Toronto. Shea also spent a se mester as a visiting s cholar
at the University of C alifornia Berkeley’s Bo alt Hall Law School.
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