The Merits of the Merits in the Class Certification Analysis

AuthorJessica A. Kimmel
Jessica A. Kimmel1
A majority of the Canadian provinces now have comprehensive class
action legislation in place.2 In its 1982 report, the Ontario Law Reform
Commission recommended that Ontario’s comprehensive class action
legislation should include a “preliminary merits test” as part of the certi-
fication requirements, stating that “[a]s a precondition to the certification
of an action as a class action, the court should be required to find that
the action is brought in good faith and that there is a reasonable possibil-
ity that material questions of fact and law common to the class will be
resolved at trial in favour of the class.”3
Notwithstanding the recommendation of the Ontario Law Reform
Commission, the drafters of the Ontario Class Proceedings Act,4 as well as
the drafters of the comprehensive schemes in other provinces, decided
not to include an initial inquiry of the merits.5 In fact, to the contrary,
1 Jessica A. Kimmel, Goodmans LLP. The author gratefully acknowledges the
hard work and assistance of Tammy Jacobson, a second-year law student at the
University of Toronto Law School and summer student at Goodmans LLP, who
researched and helped to write this article.
2 Quebec (1978), Code of Civil Procedure, R.S.Q. c. C-25, Book IX; Ontario
(1993), Class Proceedings Act, 1992, S.O. 1992, c. 6 [Ontario Class Proceedings
Act]; British Columbia (1995), Class Proceedings Act, R.S.B.C. 1996, c. 50 [B.C.
Class Proceedings Act]; Saskatchewan (2002), Class Actions Act, S.S. 2001,
c. C-12.01 [Saskatchewan Class Actions Act]; Newfoundland and Labrador
(2002), Class Actions Act, S.N.L. 2001, c. C-18.1 [Newfoundland & Labrador
Class Actions Act]; Manitoba (2002), Class Proceedings Act, C.C.S.M. c. C130
[Manitoba Class Proceedings Act]; Alberta (2003), Class Proceedings Act, S.A.
2003, c. C-16.5 [Alberta Class Proceedings Act].
3 Ontario Law Reform Commission, Report on Class Actions (Toronto: Ministry of
the Attorney General, 1982) at 324.
4 Ontario Class Proceedings Act, above note 2.
5 A preliminary merits test has since been adopted as part of the leave require-
ment for Securities Act actions (Securities Act, R.S.O. 1990, c. S.5) for misrep-

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