On March 9, 2018, the Law Commission of Ontario (LCO) released its Consultation Paper entitled "Class Actions: Objectives, Experiences and Reforms". The Consultation Paper is the next phase of the LCO's Class Actions Project which is set to conduct a general review of the class action landscape in Ontario, with a view to providing a final report with recommendations for law reform where appropriate.
It has now been 25 years since the passage of the Ontario Class Proceedings Act, and this is said to be the first systematic review of the class action regime in Ontario since the 1990 report of the Ontario government's Advisory Committee on Class Action Reform. As can be seen from the questions below, there is the potential that recommendations made during the process could have significant impact on class actions in Ontario, and thus companies operating in Ontario who might be faced with class action litigation.
The LCO has invited views on a series of consultation questions as follows:
- How can delay in class actions be reduced?
- Given that class actions must provide access to compensation to class members, how should distribution processes be improved?
- What changes, if any, should be made to the costs rule in the CPA?
- Is the current process for settlement and fee approval appropriate?
- Is the current approach to certification under s. 5 of the CPA appropriate?
- Are class actions meeting the objective of behaviour modification? What factors (or kinds of cases) increase (or reduce) the likelihood of behaviour modification?
- Please describe class members' and representative plaintiffs' experience of class actions.
- In light of existing constitutional restrictions, what is the most effective way for courts to case manage multi-jurisdictional class actions in Canada?
- How should Ontario courts address the issue of carriage in class actions?
- What is the appropriate process for appealing class action certification decisions?
- What best practices would lead a case more efficiently through discoveries, to trial and ultimately to judgment? Are there unique challenges in trials of common issues that the CPA and/or judges could address? What can judges do to facilitate quicker resolutions and shorter delays?
- In addition to the issues listed in this paper, are there provisions in the CPA that need updating to more accurately reflect current jurisprudence and practice? If so, what are your specific recommendations?
- Should the Class Proceedings Act or Rules of Civil Procedure be amended to promote mandatory, consistent reporting on class action proceedings and data?
The deadline for comment is May 11, 2018.
The LCO's project is ambitious, and identifies many of the issues that both our clients and our colleagues have identified as being areas of concern. We expect that the LCO will receive significant comment on these issues in the consultation period from plaintiffs, defendants, third party litigation funders and counsel. Whether the consultation leads to real reform remains to be seen, but this is certainly a step in the right direction. We will be reviewing the LCO's paper in detail and our class actions team would be pleased to discuss the process. We will also keep you advised of developments as they occur.
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