The Early Campaign for Reform and the OLRC Report

AuthorSuzanne Chiodo
Pages47-88
Chapter
3
THE
EARLY
CAMPAIGN
FOR
REFORM
AND
THE
OLRC
REPORT
The
latter
part
of
the
twentieth
century,
particularly
from
the
late
1960s
onwards,
saw
an
expansion
of
bureaucracy
in
public
administration,
while
mass
production
became
ever
more
pervasive
in
private
industry.
1
As
the
size
of
institutions
and
businesses
grew,
they
became
increasingly
distant
from
the
citizens
that
used
them.
2
A
wider
swath
of
citizens
was
being
affected
by
the
actions
of
those
institutions
and
businesses
at
the
same
time
as
it
was
becoming
increasingly
difficult
to
obtain
recourse
against
them.
This
era
saw
activists
such
as
Ralph
Nader
rise
to
prom
inence-individuals
who
campaigned
for
consumer,
environmental,
and
other
rights,
as
well
as
for
recourse
for
breach
of
those
rights.
The
cost
of
litigation
meant
that
very
few
individuals
would
be
willing
to
sue
the
government
or
a
multinational
corporation
for
a
wrong
done
to
them;
however,
class
actions
rose
in
popularity
as
people
began
to
see
that
there
was
strength
in
numbers.
As
Neil
Williams
has
observed:
No
matter
how
just
the
claim,
it
is
the
exceptional
person
who
will
embark
on
litigation
against
an
intransigent
business
corporation
or
1
Jamie
Benidickson,
From
Empire
Ontario
to
California
North:
Law
and
Legal
Institutions
in
Twentieth-Century
Ontario
in
DeLloyd
J
Guth
&
WW
Pue,
eds,
Can
ada
s
Legal
Inheritances
(Winnipeg:
Canadian
Legal
History
Project,
Faculty
of
Law,
University
of
Manitoba,
2001)
at
620
and
644-47.
2
James
O
Grady,
Consumer
Remedies
(1982)
60:4
Canadian
Bar
Review
549
at
550-51.
See
also
Anna
Sadovnikova
et
al,
Consumer
Protection
in
Postwar
Canada:
Role
and
Contributions
of
the
Consumers
Association
of
Canada
to
the
Public
Policy
Process
(2014)
48:2
The
Journal
of
Consumer
Affairs
380.
47
48
THE
CLASS
ACTIONS
CONTROVERSY
government
agency,
particularly
if
the
individual
stake
is
only
small.
However,
a
vindication
of
rights
becomes
a
realizable
prospect
when
the
citizen
sues
not
just
for
himself
but
also
for
hundreds
and
possibly
thousands
of
others
in
an
identical
position.
3
This
enthusiasm
occurred
not
only
in
the
United
States
with
the
enact
ment
of
the
new
Rule
23
that
allowed
for
class
actions
for
damages;
as
noted
in
the
previous
chapter,
it
arose
in
numerous
jurisdictions,
includ
ing
Canada.
Following
the
developments
occurring
in
their
neighbour
to
the
south,
the
passage
of
the
new
Rule
23
was
viewed
with
interest
by
Canadian
advocates
of
consumer,
environmental,
and
civil
rights.
With
the
increasingly
liberal
attitude
of
the
courts
towards
class
actions,
these
advocates
were
encouraged
to
press
for
a
similar
remedy
in
Canada.
Their
efforts
were
boosted
by
a
number
of
developments
that
helped
prepare
the
ground
for
class
proceedings
legislation,
familiarizing
politicians
and
lawyers
with
the
device,
and
turning
public
opinion
in
its
favour.
A.
THE
FIGHT
FOR
CONSUMER
RIGHTS
Consumer
rights
were
on
the
rise
in
the
late
1960s
and
1970s
in
North
America,
with
the
enactment
of
public
regulation,
such
as
the
Ontario
Consumer
Protection
Act,
4
and
the
establishment
of
consumer
protection
agencies,
such
as
the
federal
Department
of
Consumer
and
Corporate
Affairs.
5
These
measures
were
taken
to
redress
the
imbalance
of
power
between
consumer
and
producer,
and
to
protect
consumers
against
eco
nomic
losses.
6
As
consumer
rights
proponents
occupied
the
vanguard
for
the
campaign
for
class
actions
in
Canada,
7
the
issue
was
increasingly
debated
in
the
press.
Consumer
advocates
argued
that
expanding
rights
was
pointless
without
a
machinery
to
enforce
those
rights.
Because
consumers
would
not
bother
bringing
a
small
individual
claim
arising
3
Neil
J
Williams,
Consumer
Class
Actions
in
Canada
Some
Proposals
for
Reform
(i975)
I?
Osgoode
Hall
Law
Journal
i
at
3
[Williams,
Some
Proposals
].
4
RSO
1970,
c
82.
5
Public
Interest
Advocacy
Centre,
Consumer
Protection
in
Canada
and
the
European
Union:
A
Comparison
(2009)
at
23-25,
online:
www.piac.ca/wp-content/uploads/
2oi4/n/piac_report_consumer_protection_in_canada_and_the_europeon_
union_a_comparision.pdf.
6
lain
Ramsay,
Consumer
Law
and
Policy:
Text
and
Materials
on
Regulating
Consumer
Markets,
3d
ed
(Oxford:
Hart,
2012)
at
4-5.
7
Williams,
Some
Proposals,
above
note
3
at
2.
The
Early
Campaign
for
Reform
and
the
OLRC
Report
49
from
shoddy
goods
because
of
the
expense,
delays,
and
inconvenience,
an
effective
machinery
had
to
include
class
actions.
8
Class
actions
under
Rule
75
were
brought
against
corporations
such
as
GM
9
and
Ford.
10
The
lawyers
in
those
cases
rose
to
prominence
as
consumer
rights
advocates,
with
Jeff
Lyons
(counsel
for
the
plaintiffs
in
the
Ford
action
and
the
Naken
case
against
GM)
being
dubbed
Canada
s
Ralph
Nader.
11
On
the
other
side,
business
interests
argued
that
allowing
class
actions
would
harm
legitimate
businesses;
place
an
enormous
burden
on
the
courts;
and
prove
expensive,
slow,
cumbersome,
and
ineffective
for
consumers.
12
The
case
for
consumer
class
actions
was
also
made
in
sev
eral
working
papers
commissioned
by
the
Canadian
Consumer
Council
8
Michael
Trebilcock,
Our
Legal
Machine
Can
t
Enforce
Rights
Globe
and
Mail
(u
September
1972)
6
[Trebilcock,
Legal
Machine
],
in
Ontario
Law
Reform
Commis
sion
files,
Nov
1976-Dec
1982,
Project
name:
class
actions,
RG
4-66,
BA77,
Box
No
B380537,
North
York,
Archives
of
Ontario
[Box
No
B380537].
Trebilcock,
a
University
of
Toronto
law
professor,
made
similar
arguments
in
his
article,
Private
Law
Reme
dies
for
Misleading
Advertising
(1972)
22
University
of
Toronto
Law
Journal
1.
He
later
worked
on
the
OLRC
Report
on
class
actions.
9
General
Motors
of
Canada
Ltd
v
Naken
[Naken],
further
discussed
in
Section
J,
below
in
this
chapter.
The
Naken
action
was
commenced
in
July
1973,
and
the
defendant
brought
a
motion
to
strike
two
years
later
(on
the
grounds
that
the
pleading
dis
closed
no
reasonable
cause
of
action).
Naken
s
journey
through
the
courts
is
detailed
in
Chapter
2.
10
As
a
result
of
the
publicity
surrounding
Naken,
the
plaintiffs
lawyer
in
that
case,
Jeffery
Lyons,
also
represented
owners
of
Ford
vehicles
that
were
prone
to
rust
ing:
Rusty
Ford
Owners
Association,
Civil
Litigation
Against
Manufacturers
of
Defective
Automobiles
(1976),
Jeffery
Lyons
Fonds,
M1KAN
No
4583565,
Container
1,
Item
17,
Ottawa,
Library
and
Archives
Canada.
However,
Lyons
learned
from
his
experience
with
GM
and
advised
his
Ford
clients
to
fight
in
the
court
of
public
opin
ion
instead.
This
tactic
succeeded,
with
a
settlement
forthcoming
later
that
year:
Estelle
Doráis,
Ford
to
Pay
$300
Rust
Compensation,
and
Clayton
Sinclair,
Rust
Settlements
Will
Polish
Ford
s
Image
Montreal
Gazette
(25
September
1976)
Bi,
both
available
online:
Google
Newspaper
Archives
http://bit.ly/2hs00eC
.
11
John
Lorinc,
Jeffery
Lyons
Paved
the
Way
for
Consumer
Lawsuits
Globe
and
Mail
(7
August
2015),
online:
www.theglobeandmail.com/news/jeffery-lyons-paved-the-way-
for-consumer-lawsuits/article2589i542/
?.
For
contemporaneous
news
coverage
of
Lyons
s
role
in
the
Naken
case,
see
P
Dalby,
Father
and
Son
Geared
for
Battle
with
Auto
Giant
Toronto
Star
(15
September
1981);
W
Darroch,
GM
Pulls
Out
Big-Gun
Lawyers
Toronto
Star
(17
September
1981);
both
articles
can
be
found
in
Ontario
Law
Reform
Commission
files,
Nov
1976-Dec
1982,
Project
name:
class
actions,
RG
4-66,
BA77,
Box
No
B380543,
North
York,
Archives
of
Ontario
[Box
No
B380543].
12
Anthony
Abbott,
...
But
Proposal
May
Do
More
Harm
Than
Good
Globe
and
Mail
(11
September
1972)
7
[Abbott,
Proposal
],
in
Box
No
B380537,
above
note
8.
Abbott
was
then
president
of
the
Retail
Council
of
Canada.

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