In July, the Law Commission of Ontario released its final report of the Class Proceedings Act: a two-year project led by Windsor Law professor Jasminka Kalajdzic.
The report made over 40 recommendations to update the Act to reflect current best practices and to improve the system for its users. In the fall of this year, the Attorney-General of Ontario introduced legislation to amend the Act. Bill 161, Smarter and Stronger Justice Act, is omnibus legislation that amends almost two dozen statutes that affect the delivery of legal and court services in the province, including the Class Proceedings Act.
“I was pleased to see that most of the recommendations were, in fact, adopted,” says professor Kalajdzic. “However, one proposed amendment — the introduction of a predominance test — would make class actions far less accessible in Ontario than in any other province, and is inconsistent with the statute’s access to justice objectives.”
Kalajdzic says the predominance test comes from U.S. law but notes that the Class Proceedings Act was originally drafted specifically to avoid the restrictive analysis used by American courts. Where the US Supreme Court frames class actions as the “exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” the Supreme Court of Canada has repeatedly stated that the Act “should be construed generously to give full effect to its benefits.”
The proposed changes to the certification test are inconsistent with the long-standing Canadian approach to mass harm redress, says Kalajdzic.
“This is a major step back for Ontarians,” she says. “It is a change that is clearly intended to reduce access to class actions on the part of consumers. The change disrupts 30 years of Supreme Court of Canada jurisprudence, and positions Ontario as the outlier in a more or less consistent national approach to class certification.”
To read Kalajdzic’s full commentary on the proposed changes, visit the Class Action Clinic blog.