CANADA Law and Practice Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
Baker McKenzie 181 Bay Street Suite 2100
Toronto Ontario M5J 2T3 Canada
Tel: +1 416 865 6983 Fax: +1 416 863 6275 Email: David.Gadsden@bakermckenzie.com Web: www.bakermckenzie.com
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime Legislative Reform Forms of representative or “class” proceedings can be traced to the 19th-century English courts, and rudi- mentary class procedures have been available under Ontario civil procedure since 1881. However, the mod- ern form of class proceedings in Canada arose from a series of legislative reforms in the late 1970s and 1980s. In 1978, Quebec passed class action legislation. How- ever, since Quebec has a civil law system, this reform was not consequential for the Canadian common law provinces. In 1979, the Ontario Court of Appeal granted leave for several plaintiffs to bring a class action in Naken v General Motors of Canada Ltd [1979] OJ No 4013 reversed [1983] 1 SCR 72. Canada’s Supreme Court overturned this decision in 1983, holding that the class procedures under Ontario’s rules of court were “totally inadequate” for such a complex action. The Supreme Court acknowledged some potential value of a class action regime but deferred to the legislature for reform. Around the same time, the Ontario Law Reform Com- mission published the Report on Class Actions. The Commission recommended legislative reform to ena-
ble class proceedings. The introduction of class pro- ceedings was intended to advance three objectives: • judicial economy;
• access to justice; and • behaviour modification.
In 1989, the Ontario Attorney General’s Advisory Committee on Class Action Reform issued a report that heavily relied on the Report on Class Actions, and wrote a proposed bill setting out the legislation that would become Ontario’s Class Proceedings Act, 1992. When it came into force in 1993, Ontario became the first common law province with class action legislation. Changing Court Attitudes While Canadian courts had initially been reluctant to embrace class actions, the resistance largely sub- sided when the Supreme Court of Canada released a seminal trilogy of cases in 2001: • Western Canadian Shopping Centres v Dutton 2001 SCC 46; • Hollick v City of Toronto 2001 SCC 68; and • Rumley v British Columbia 2001 SCC 69. The Court acknowledged the growing importance of class actions and adopted the three objectives of class proceedings (ie, judicial economy, access to justice and behaviour modification). The Court endorsed a flexible and expansive approach to class action procedure and even provided a framework for
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