Law Commission of Ontario review enters new phase

Twenty-five years after the enactment of the Class Proceedings Act, 1992 (CPA), the Law Commission of Ontario (LCO) has recognized that a lack of empirical data on class proceedings is a significant problem, “lending to opacity and impressionistic information from which reliable conclusions cannot be drawn,” Toronto class-action lawyer Margaret Waddell writes in The Lawyer’s Daily.

“Despite the dearth of empirical data, and recognizing that opinions will be based upon the subjective views and experiences of those who respond to their consultation, the LCO is now undertaking a long-overdue review of class actions in Ontario,” she says.

Three-part promise

“The purpose of the project is ‘to research whether class actions are fulfilling their three-part promise to improve access to justice, foster judicial efficiency, and promote behaviour modification.’ When the research is completed, the LCO will deliver a report that includes its analysis of the current class action regime, and it will make recommendations for reform, where appropriate.”

Waddell, a partner with Waddell Phillips Professional Corporation, says the review will also consider whether reforms are required to ensure that mass wrongs are effectively redressed, class members’ rights are protected and inappropriate cases are weeded out early in the process.

“Given the importance of this undertaking, and the influence that the final report may have on class action reform, it is critical that as many stakeholders as possible respond to the consultation request, so that the results represent, as fairly as possible, the views of all players in the class action regime,” she writes.

Waddell notes that in addition to its report, the LCO also plans to create “a much-needed class action database so that in the future there will be meaningful and accurate empirical information from which to assess the efficacy of class actions in meeting their intended purposes.”

“A Technical Advisory Committee has been established for this project, with the assistance of a consulting firm,” she says.

The intent is to establish and maintain a comprehensive and current database, consistent with what the Report of the Attorney General’s Advisory Committee on Class Action Reform recommended almost 30 years ago before the CPA came into force, Waddell says.

First phase complete

The LCO has already completed the first phase of its consultative review, she explains.

“During phase one, the Principal Researchers interviewed 60 ‘key informants,’ representing a comprehensive cross-section of class action stakeholders, and it asked them a series of standardized questions,” she says. “From the answers received to these questions, the LCO then identified 13 issues which it considers to have a systemic impact on class proceedings.”

The second phase of the review, launched in March with the release of the LCO’s consultation paper, Class Actions Objectives, Experiences and Reforms, now seeks input from the profession, parties and class members, and the public about the 13 identified issues and the class action regime in general, Waddell says.

“Its inquiry focuses, particularly, on whether any part of the class action regime would benefit from reform,” she says.

Input encouraged

Waddell says anyone with an opinion on the issues listed below is encouraged to send their input to the LCO before the submission deadline of May 11:

1. How can delay in class actions be reduced?
2. Given that class actions must provide access to compensation to class members, how should distribution processes be improved?
3. What changes, if any, should be made to the cost rule in the CPA?
4. Is the current process for settlement and fee approval appropriate?
5. Is the current approach to certification under s. 5 of the CPA appropriate?
6. Are class actions meeting the objective of behaviour modification? What factors (or kinds of cases) increase (or reduce) the likelihood of behaviour modification?
7. Please describe class members’ and representative plaintiffs’ experience of class actions?
8. In light of existing constitutional restrictions, what is the most effective way for courts to case manage multi-jurisdictional class actions in Canada?
9. How should Ontario courts address the issue of carriage in class actions?
10. What is the appropriate process for appealing class action certification decisions?
11. 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?
12. In addition to the issues listed above, are there provisions in the CPA that need updating to more accurately reflect current jurisprudence and practice? If so, what are your specific recommendations?
13. Should the CPA or Rules of Civil Procedure be amended to promote mandatory consistent reporting on class action proceedings and data?