CANADA Law and Practice Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
1.3 Implementation of the EU Collective Redress Regime The EU Collective Redress Regime has not been implemented in Canada. 2. Legal Framework 2.1 Collective Redress and Class Action Legislation Each of Canada’s ten provinces has separate class action legislation, and a separate federal statutory scheme governs class actions brought under the juris- diction of the Federal Court. Canada’s three territories do not have explicit class action legislation but follow common law procedures. Class action regimes across Canada’s common law jurisdictions are largely similar, with some important procedural differences. Canada’s lone civil law province, Quebec, follows substantially different class action procedures. The relevant statutes are: • Alberta – Class Proceedings Act, SA 2003, c C-16.5; • British Columbia – Class Proceedings Act, RSBC 1996, c 50; • Manitoba – Class Proceedings Act, CCSM, c C130; • New Brunswick – Class Proceedings Act, RSNB 2011, c 125; • Newfoundland and Labrador – Class Actions Act, SNL 2001, c C-18.1; • Nova Scotia – Class Proceedings Act, SNS 2007, c 28; • Ontario – Class Proceedings Act, 1992, SO 1992, c 6; • Prince Edward Island – Class Proceedings Act, RSPEI 1988, c C-9.01; • Quebec – Act respecting the Fonds d’aide aux actions collectives , CQLR, c F-3.2.0.1.1; • Saskatchewan – The Class Actions Act, SS 2001, c C-12.01; and • Federal Courts Rules (SOR/98-106), Part 5.1. 2.2 Scope of Areas of Law to Which the Legislation Applies Class actions are procedural mechanisms that could be applied to cases touching on most areas of the law.
certification to those provinces without class action legislation. Canada’s three territories continue to rely on this framework today. Subsequent Developments Since the passing of Ontario’s legislation, all ten Canadian provinces have adopted class proceedings legislation, with Prince Edward Island being the last (in 2022). Parties can also bring class actions in the Federal Court if the subject matter of the underlying case falls within the Federal Court’s jurisdiction. Class proceedings are now widespread in Canada, with many specialist plaintiff law firms prosecut- ing claims across the country and defence counsel typically being drawn from established firms. Cana- dian courts frequently hear motions for class action certification (or, in Quebec, authorisation) and other substantive and procedural motions and applications arising from class proceedings; however, trials remain relatively rare. 1.2 Basis for the Legislative Regime, Including Analogous International Laws While Canadian class action legislation initially drew some elements from American legislation, Canada’s overall regime is unique. For example, the requisite elements for class action certification originated in certain American statutes but were interpreted differ- ently over time by Canadian courts. More recently, however, amendments to Ontario’s Class Proceedings Act, 1992 have incorporated the concepts of supe- riority (ie, a class action must be a superior means of advancing issues common to the class) and pre- dominance (ie, common issues must predominate over individual issues) into the certification analysis, bringing the Ontario test closer to American certifica- tion requirements. Another key distinction is that certification in Canada occurs before discovery and involves a limited evi- dentiary record, while certification in the USA typi- cally occurs after extensive depositions have been conducted and, therefore, involves a more expansive evidentiary record.
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