The Limits of Case Management: A Review and Principled Approach to the Court’s General Management Powers

• Author: Paul-Erik Veel, Adil Abdulla, and Angela Hou
• Pages: 143-185

143

The Limits of Case Management: A Review and

Principled Approach to the Court’s General

Management Powers

Paul-Erik Veel, Adil Abdulla, and Angela Hou

: Courts across Canada have been given a broad general manage-

ment power to address the unique procedural complexities of class

actions. Courts have used these powers to make a variety of orders, but

seldom with any express linkage to any underlying principles or norma-

tive rationale. In this article, we identify some underlying principles and

propose a four-step test for when courts should exercise these general

management powers. First, the general management power can only be

used to make procedural orders. Second, the general management power

cannot be used in a manner that conf‌licts with the class proceedings

legislation from which it springs. Third, the general management power

can be used to override the normal rules of civil procedure, but only if

the divergence can be justif‌ied by reference to the unique nature of class

actions. Fourth, the court’s discretion should be guided by the ef‌fect of an

order on the fairness and the eciency of the proceeding.

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THE LIMITS OF CASE MANAGEMENT:

A REVIEW AND PRINCIPLED APPROACH

TO THE COURT’S GENERAL MANAGEMENT

POWERS

Paul-Erik Veel,* Adil Abdulla,** and Angela Hou***

A. INTRODUCTION

It goes without saying that class proceedings are a unique form of liti-

gation. The litigation of issues on behalf of a class of persons, many of

whom will never have any contact with the lawyers acting on their behalf,

raises particular challenges. For this reason, the legislatures of almost

every province1 have endowed courts with broad powers to a manage

a class proceeding to ensure its fair and expeditious determination. For

example, in Ontario, section 12 of the Class Proceedings Act, 1992 (as

recently amended) allows the court to “may make any order it consid-

ers appropriate” and to “impose such terms on the parties as it considers

appropriate.”2 While the language dif‌fers slightly between jurisdictions

in Canada, every common law jurisdiction has some version of that

statement. These statutory powers — which we refer to throughout this

article as the court’s “general management power”3 — have been broadly

* Paul-Erik Veel is a lawyer at Lenczner Slaght and an Adjunct Professor at the

University of Toronto Faculty of Law.

** Adil Abdulla is an articling student at Lenczner Slaght.

*** Angela Hou is an articling student at Lenczner Slaght.

1 The only exception is Prince Edward Island, the one province that still has no class

actions legislation: King & Dawson v Government of PEI, 2020 PECA 13 at para 24.

2 Class Proceedings Act, 1992, SO 1992, c 6, s 12 [am SO 2020, c 11, Sched 4, s 14]. We will

discuss this section in more detail below.

3 Ontario Law Reform Commission, Report on Class Actions, vol 2 (Toronto: Ministry

of the Attorney General, 1982) at 451 [1982 Report]; Ontario, Ministry of the

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