Revitalizing Environmental Class Act Ions: Quebecois Lessons for en Glish Canada

AuthorChristie Kneteman
Harvey T. Strosberg, Q.C.
This year’s second issue of The Canadian Class Action Review provides a
wonderful example of some of the most interesting and engaging ideas
permeating moder n discussion about Canadian class actions.
This issue of the CCAR looks at subjects such as: t he potential of
environmental class actions; what is meant by “as near as possible” in cy
pres awards; the usefulness of behaviour modif‌ication as a criterion for
authorizing certif‌ication; issues surrounding fee approval; the business
and legal case for class arbitration in Canada; the disparity in certif‌ica-
tion rates between Ontario and the rest of Canada; and the meaning of
the “some basis in fact” evidentiary requirement on certif‌ication.
The f‌irst article in this collection is Christie Kneteman’s “Revitalizing
Environmental Class Actions: Quebecois Lessons for English Canada”
which won the 2010 Strosberg Prize. The author undertakes a statistical
and qualitative comparison of environmental class actions in Quebec and
English Canada. The outcome — evidence of two-and-a-half times more
environmental class actions in Quebec than in the rest of Canada, as well
as Quebec courts being more willing to hear personal injury claims in
the context of environmental class actions — is used as a springboard to
look at how English Canada can learn from the Quebecois approach to
class actions in the environmental context.
Cy Pre s Awards in Canadian Class Actions: A Critical Interrogation
of What is Meant by ‘As Near As Possible.’” Authors E. Rebecca Potter and
Natas ha Raza ck use a comp arative an alysis of t he use of d ifferent t ypes of
cy p res awards and the extent to which they achieve the class actions ob-
jectives — judicial economy, access to justice, and behaviour modif‌ication.
They ma ke a case for cou rts to ser iously consid er the regul atory natu re of
class act ions and explore the ways i n which granting the award can serve
a regulatory purpose. The ultimate purpose is to ensure that cy pres can
offer a class actions remedy “as near as possible” to the ideal remedy.
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258 The Can adia n Class aC Tion Review
« La dissuasion : 10 ans de jurisprudence canadienne en matière d’auto-
risation d’exercer un recours collect if » was another st rong submission
for the 2010 Strosberg Prize. In this French article (accompanied by an
English abstract), author François Comeault determines that a review of
the last ten years of Canadian jur isprudence in the area of class action
certif‌ication demonstrates the uselessness of the current application of
behaviour modi f‌ication. He concludes that while behaviour modif‌ication
does appear to be a useful measure at the class action certif‌ication stage in
certain context s, unfortunately, its application remains underdeveloped.
Next, Ki rk M. Baert and Jonathan Bida offer readers a discussion of
severa l issues su rrounding fe e approvals in their art icle, “Fee Agree ments
and Fee Approval in Ontario Class Proceedings.” Two main ideas are ex-
plored: (1) courts have underemphasized the terms of the retainer agree-
ment with the representative plaintiff in setting class counsel fees; and (2)
the fo cus in fee approval he aring s on reconci ling th e fees coun sel rece ives
by percentage recovery and through t he use of a multiplier is too gre at.
The authors emphasize that courts should avoid allowing reconciliation
to dominate the type of analysis used in calculating counsel fees.
Jeffrey S. Leon, Eric R. Hoaken, and Rebecca Huang analyze class
arbitration in “Class Arbitration in Canada: The Legal and Business
Case.” Their article begins with the premise that the ability to litigate a
class claim may be foreclosed by the inclusion of a standard arbitration
clause, and in turn, m ay lead to an automatic stay of any potential class
action in court. From there, the paper analyzes the business and legal
case for class arbitration in Canada based on the current Canadian juris-
prudence on the interplay between arbitration clauses and class actions.
The authors suggest that in some circumst ances class arbitration may be
an alternative th at is more desirable than class litigation.
In “Certif‌ication Rates in Ontario versus the Rest of Can ada: Why
the Disparity?” Adrian C. Lang and Mel Hogg explore the reasons why
there is a disparity in the certif‌ication of cases in common law Can-
ada — far more cases are certif‌ied in Ontario than in any other jurisdic-
tion. The authors believe that thi s appears to be motivated both by more
permissive attitudes towards cla ss proceedings in Ontario, and differing
approaches by plaintiffs to causes of action outside of Canada.
The f‌inal article of this issue is Celeste Poltak’s “The Space Between
Rule 20 and 21: The Evidentiary Burden on Certif‌ication.” This article
attempts to def‌ine the concept of the “some basis in fact” evidentiary
requirement on certif‌ication as courts st ill struggle to provide a specif‌ic
def‌inition of thi s idea. It also looks at the relevant jurisprudence and at-
CCAR Vol 6 No 2.indb 258 23/12/2010 1:03:33 PM
volume 6, no 2, deCe mbeR 2010 259
tempts to provide some answers to this vague evidentiary component,
especially as it relates to each statutory criteria of the certif‌ication test, as
well as which part bears this evidentiary burden in what circumst ances.
Ultimately, the author concludes that the concept of “some basis in fact”
lies between Rule 20 and Rule 21.
We hope you enjoy 2010’s f‌inal issue of The Canadian Class Action
Review. We will see you in 2011.
Harvey T. Strosberg, Q.C.
CCAR Vol 6 No 2.indb 259 23/12/2010 1:03:33 PM

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