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

• Author: Christie Kneteman
• Pages: 261-296

257

intRoduCtion

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-

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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.

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