The Collective Class Action: An Expansion of the Class Action Framework

AuthorAlexis Giannelia
Pages5-44
5
The Collective Class Action: An Expansion of the
Class Action Framework
Alexis Giannelia
: In the class actions context, Aboriginal rights and Indigenous
issues have largely been considered from an individualistic perspective.
Indeed, the use of class actions to address violations of collective rights
has only been af‌forded cursory consideration. This paper argues that the
class action framework can expand to accommodate collectives seeking
remedies for violations of collective rights, constructing a collective class
action framework. Three existing mechanisms of the class action frame-
work can be used to ensure collective class actions are ecient, ef‌fective,
and constructive. First, the potential opt-in conf‌iguration of class actions
can acknowledge the diversity and autonomy of Indigenous peoples in
Canada. Second, the class of collectives can establish an internal gov-
ernance structure that can assume the role of representative plaintif‌f.
And third, in no-cost regimes, the protection from costs is invaluable to
Indigenous litigants, many of whom have f‌inite f‌inancial resources. In
jurisdictions that allow an award of costs in class proceedings, judges can,
and should, use their public interest discretion to not award costs.
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7
THE COLLECTIVE CLASS ACTION: AN
EXPANSION OF THE CLASS ACTION
FRAMEWORK
Alexis Giannelia*
A. INTRODUCTION
The landscape of Aboriginal law and Indigenous issues in Canada has
transformed immensely over the past few decades, including: the inclu-
sion of section 35 in the Constitution Act, 1982,1 which provides constitu-
tional recognition of existing Aboriginal and treaty rights; the decision of
Tsilhqot’in Nation v British Columbia2 in 2014, which marks the f‌irst judicial
declaration of Aboriginal title; the creation of the Truth and Reconcilia-
tion Commission (TRC) and the dissemination of TRC Final Report, which
outlines the history and circumstances of Indigenous peoples in Canada
and raises ninety-four calls to action; and the expansion of the duty to
consult doctrine, which informs how government interacts with Indigen-
ous peoples. Canada’s legal landscape is changing, and it is imperative that
all areas of Canadian law evolve to acknowledge these advancements.
In the class actions context, Aboriginal rights and Indigenous issues
have largely been considered from an individualistic perspective. Although
* BA & BSc in International Development Studies and Psychology with Honours (McGill
University), JD (University of Toronto). This paper ref‌lects the author’s personal views
and is derived from a term paper written for a course on class actions. The author would
like to acknowledge the professors of the course — Ranjan Agarwal, Michael Eizenga,
Michael Rosenberg, and Simon Stern — as well as Craig Thomas and Kerry Wilkins for
their comments and encouragement on earlier drafts of this paper. Thank you.
1 Constitution Act, 1982, s 35.1, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Constitution Act, 1982].
2 Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in].
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