Typicality, Preferable Procedure, and Superiority: Ontario Class Proceedings Act, 1992 and Rule 23 of the U.S. Federal Rules of Civil Procedure

• Author: Amy Wilson
• Pages: 375-397

375

TYPICALITY, PREFERABLE

PROCEDURE, AND SUPERIORITY:

ONTARIO

CLASS PROCEEDINGS

ACT, 1992

AND RULE 23 OF THE

U.S. FEDERAL RULES OF CIVIL

PROCEDURE

Amy Wilson1

A. INTRODUCTION

Since the creation of the Ontario Class Proceedings Act, 1992,2 various

scholars have compared its certification requirements to those of its

American counterpart.3 The CPA came into effect much later than Rule

23 of the U.S. Federal Rules of Civil Procedure4 and followed it in many

respects.5 As Edward F. Sherman points out, a comparison between simi-

lar laws can be a beneficial practice for both jurisdictions involved.6 This

paper compares the CPA to Rule 23, looking at case law to determine

which jurisdiction has the preferable certification requirements for class

actions and keeping in mind the respective goals of Ontario and the U.S.

1 Amy Wilson is a candidate for Bachelor of Laws, University of Windsor (2005)

and a candidate for Juris Doctor, University of Detroit Mercy (2005).

2 Class Proceedings Act, 1992, S.O. 1992, c. 6 [CPA].

3 See Charles M. Wright & Matthew D. Baer,“Price-fixing Class Actions: A

Canadian Perspective” (2004) 16 Loy. Consumer L. Rev. 463; Steven F.

Rosenhek, “Class Actions Across the Border” (2001) 10 Bus. L. Today 56; and

Michael J. Peerless & Michael A. Eizenga, “Class Actions in Breast Implant

Litigation” (1996) 16 Health L. Can. 78.

4 U.S. Federal Rules of Civil Procedure, Fed. R. Civ. P. 23 [Rule 23].

5 See Edward F. Sherman, “Group Litigation under Foreign Legal Systems:

Variations and Alternatives to American Class Actions” (2002) 52 DePaul L.

Rev. 401 at 429; Garry D. Watson, “Class Actions: The Canadian Experience”

(2001) 11 Duke J. Comp. & Int’l L. 269 at 272; Michael McGowan,

“Certification of Class Actions in Ontario: A Comparison of the U.S. Federal

Rules of Civil Procedure” (1993) 16 C.P.C. 172.

6 See Edward F. Sherman, ibid. at 432.

376 THE CANADIAN CLASS ACTION REVIEW

for class actions. It then analyzes the benefits of adopting a single test for

certification for both the U.S. and Ontario. The goal of this paper is to

show that, with cross-border transactions on the increase, the adoption

of a uniform test for certification in the U.S. and Ontario is desirable.

An evaluation of the objectives of class actions in the U.S. and Ontario

reveals that the CPA provides the model for such a test.

B. CERTIFICATION REQUIREMENTS IN

ONTARIO AND THE U.S.

Section 5(1) of the CPA sets out the requirements for certification of a

class in Ontario:

The court shall certify a class proceeding on a motion under section 2,

3, or 4 if,

(a) the pleadings or the notice of application discloses a cause of

action;

(b) there is an identifiable class of two or more persons that would be

represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common

issues;

(d) a class proceeding would be the preferable procedure for the

resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the

class,

(ii) has produced a plan for the proceeding that sets out a work-

able method of advancing the proceeding on behalf of the class

and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest

in conflict with the interest of other class members.

In comparison, Rule 23 sets out U.S. certification requirements:

a) Prerequisites to a Class Action.

One or more members of a class may sue or be sued as representative

parties on behalf of all only if 1) the class is so numerous that joinder of

all members is impracticable, 2) there are questions of law or fact com-

mon to the class, 3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class, and 4) the representa-

tive parties will fairly and adequately protect the interests of the class.