The Early Campaign for Reform and the Olrc Report
| Author | Suzanne Chiodo |
| Pages | 47-88 |
47
Chapter 3
THE EARLY CAMPAIGN
FORREFORM AND THE
OLRCREPORT
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 dicult 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.
48
The Cana dian Cl ass Action Rev iew | Volume 14 • No 1
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”
(1975) 13 Osgoode Hall Law Journal 1 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/
2014/11/piac_report_consumer_protection_in_canada_and_the_europeon_
union_a_comparision.pdf.
6 Iain 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 forR eform and the OLRCReport 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 GM9 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 (11
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, MIKAN 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 Dorais, “Ford to Pay $300 Rust Compensation,” and Clayton Sinclair, “Rust
Settlements Will Polish Ford’s Image” Montreal Gazette (25 September 1976) B1, both
available online: Google Newspaper Archives http://bit.ly/2hso0eC.
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/article25891542/?. 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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