CANADA Law and Practice Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
Class actions are frequently pursued in disputes con- cerning the following (and other areas of law): • product liability; • securities law; • competition law; • consumer protection; • privacy law; • employment issues; • aboriginal/First Nations redress; • environmental law; • personal injury; and • human rights. 2.3 Definition of Collective Redress/Class Actions “Class actions” or “class proceedings” are generally defined as court proceedings that have been “certi- fied” or “authorised” by the court to advance defined common issues on behalf of a defined class of simi- larly situated persons or entities. Before the certifica- tion/authorisation motion, the action will be referred to as a “proposed class action”. 3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions Each of Canada’s ten provinces and three territories has a separate court system, which is the default court for most actions including class actions. Canada also has a parallel Federal Court system that hears actions touching on statutorily defined subject mat- ters, including:
action. In addition to the various forms of relief and damages typically sought in civil pleadings, class action pleadings also seek certain procedural relief unique to class actions, including an order certifying the proceeding as a class action. Certification Next, the plaintiff will bring a motion/application to certify/authorise the action as a class proceeding. The court will determine, after the certification motion, whether the case is appropriate for certification as a class action. In common law jurisdictions, subject to some variation across provinces, a party seeking to certify a class action bears the burden of establishing that: • the pleading or the notice of application discloses a cause of action; • there is an identifiable class of two or more per- sons that would be represented by the representa- tive plaintiff or defendant; • the claims or defences of the class members raise common issues; • a class proceeding would be the preferable proce- dure for the resolution of the common issues; and • there is a representative plaintiff or defendant who: (a) would fairly and adequately represent the inter- ests of the class; (b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class, and of noti- fying class members of the proceeding; and (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members. The standard of proof is low. For the first requirement, the court needs to be satisfied that it is not “plain and obvious” that the pleadings fail to disclose a cause of action, even assuming the facts pleaded are true. For the remaining factors, a plaintiff needs to meet a slightly higher standard and show that there is “some basis in fact” that the requirement is fulfilled. Both standards are lower than the balance of probabilities standard that would be applied at trial.
• most areas of intellectual property; • most proceedings against the Crown; • tax; • admiralty law; and • immigration.
3.2 Overview of Procedure Commencing a Class Action
The first step in launching a class action is filing a pleading in court. The pleading must indicate that the proceeding is being brought as a proposed class
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