Recommended Changes in Ontario Rules of Civil Procedure in Class Proceedings Act
Class action law suits are civil proceedings instituted by one or more plaintiffs prosecuting on behalf of a larger group or class. The members of the class share a common interest and they present the court with determination of common issues to the plaintiffs of that particular class. The plaintiffs of the particular class should have been subjected to similar injuries by a common defendant or group of defendants.
Class proceedings are initiated with three main objectives. First to diversify access to justice. This means that the overriding objective of class action lawsuits is extending justice accessibility to all Canadians. Secondly, embracing the judicial economy. Class action law suits are deemed to be more cost effective and economical compared to other individual lawsuits. Lastly, class action law suits should aim at encouraging behavioral modification. This implies that the class action lawsuits should not focus more on compensation but rather transformation of societal behaviors and curing carelessness and recklessness in various sectors.
The Ontario Class Proceedings Act was enacted 30 years ago. It should be noted that there are various modifications in the law as it is compared to the law as it was 30 years ago. The Class Proceedings Act should also encompass various modifications and changes present in the 21st century. There is emergence of contemporary class action issues and practices which extend to the internet and social media space. The class action issues have diversified in volume, complexity, impact and approaches.
The Class Proceedings Act provides a five-fold test for certification of a class action.[1] Firstly, the proceedings or notice of application should disclose a cause of action. An actionable cause of action is disclosed if prima facie it is not obvious that the claim will fail.[2] The rule is analogous to that in relation to striking out of pleadings.[3] The same rules applicable in striking out of pleadings if they do not disclose an actionable cause of action are applied in determining whether a class action application is viable.
Secondly, there should be an identifiable class of two or more persons that would be represented by the plaintiff or defendant.[4] The persons represented should be a group of two or more persons. The effect of this criterion is determining the class members, those who will be bound by the outcome and those entitled to notice.
Thirdly, the claims or defenses of the class members raise common issues.[5] The term common will be attributed to the necessity of contribution to resolution of every class member’s claim and the substantial nature of the issue to the claim. Common issue does not translate to identical redress or remedy for all plaintiffs. The remedy should however not be in conflict with the common interest shared by the plaintiffs.
Fourthly, class proceedings should be the preferable procedure for resolution of the common issues raised.[6] The plaintiff should show that class action is the most fair and effective means of redress as compared to other proceedings. Preferability is derived from the context of the common issues. The plaintiff is not obligated to elaborate on every non-litigation alternative.
Lastly, there should be a representative plaintiff or defendant.[7] The representative should fairly and adequately represent the class interests, have a proceedings plan and should not consist of issues in conflict with the other class members.
The raison d’etre for canvassing of the certification process in the Class Proceedings Act is for screening and examination of the viability of the cause of action as a class action proceeding. This screening is done in light of the five requirements set out in section 5(1) of the Class Proceedings Act.
Recommendation for elimination or loosening of the certification process rules
The Law Commission of Ontario Commission issued a report on July 17, 2019 in an attempt to modify the Class Proceedings Act. The LCO recommended for interpretation of “preferable procedure” of certification more rigorously.[8] This would imply making the rules on class actions proceedings more stringent which could possibly translate to inaccessibility of justice. The recommendation of making the interpretation of preferable procedure examination more rigorous on the flipside should result in striking out of frivolous suits and enforcement of the de minimis principle. Having in mind that the main objective of class action proceedings is enhancement of access to justice, making the rules for obtaining the certification by the court more stringent would negate the objective.
The effect of dismissal of certification application by the court is either the cause of action proceeding as an individual cause of action or the cause of action being struck out altogether. To avoid striking out of a cause of action, the certification process should be erased as one of the procedural rule for institution of class action suits. We acknowledge that the certification helps the court in striking out frivolous class action suits but also we are alive to the fact that the certification test bar is too high. The consequence of the high certification test is that most class action suits are barred from being instituted or determined in courts. This consequently results in failure to achieve the three main objectives of class action suits.
The Class Proceedings Act expressly provides that an order certifying class action suit is not a determination of the merits of the proceedings.[9] This should however not be the case since application of the test only as a matter of procedure shuts the door for most viable class action suits when the suits fail to meet one of the requirements in section 5(1). The substantive examination of the notice for certification which pays keen attention to both the injuries caused and the procedure is the most efficient and effective test to keep class action suits alive. The striking out of class action notices due to failure to meet the set procedural criteria may result in diminishing behavioral modification and lack of deterrence to the perpetrators. Increasing the stringent rules for institution of class action law suits results in draconian striking out of the notices for certification.
Effect of elimination of certification
Loosening of the certification rules or doing away with certification process altogether will result in ease in access of justice for plaintiffs of class action law suits. The overriding objective of access to justice and deterrence will be achieved. The certification process has resulted in striking out of many class action suits which would be successful if not for lack of one of the requirements in section 5(1) of the Class Proceedings Act.[10]
Conclusion
The requirements in section 5 of the Class Proceedings Act should be interpreted in a relative approach as compared to an absolute approach. The relative approach will translate to full reaping of the overriding objectives of class action law suits and also decrease the draconian striking out of Class action lawsuits. Alternatively, the certification approach could be done away with as it seems to be more problematic than effective.
[1] Section 5 Class Proceedings Act; https://www.ontario.ca/laws/statute/92c06
[2] Section 5(1) (a) Class Proceedings Act; Hunt v. T&N plc, 1993 S.C.R.4 289 (1993).
[3] Rule 25.11 of the Rules of civil procedure; https://www.remotasks.com/en/tasks
[4] Section 5(1)(b)
[5] Section 5(1)(c)
[6] Section 5(1) (d); Hollick v. Toronto (City), 2001 S.C.R.3 158, 2001 S.C.C. 68 (2001).
[7] Section 5(1)(e) Class Proceedings Act
[8] Class Actions Objectives, Experiments and Reforms Final Report July 2019; https://www.lco-cdo.org/wp-content/uploads/2019/07/LCO-Class-Actions-Report-FINAL-July-17-2019.pdf accessed 11 April 2022
[9] Section 5(5) Class Proceedings Act
[10] Class Action Objectives, Experiments and Reforms Final Report July 2019; https://www.lco-cdo.org/wp-content/uploads/2019/07/LCO-Class-Actions-Report-FINAL-July-17-2019.pdf
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