CANADA Law and Practice Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
a means of seeking a resolution, particularly where the class action involves complex legal and factual issues. Settlement Most class proceedings are resolved by settlement. The timing of settlements varies. In some cases, defendants will consent to certification as part of an overall settle- ment agreement. In other cases, an adverse result at certification may compel one or more of the parties to settle. At other times, parties may settle after discover- ies when the evidentiary record is clearer. Settlements of class actions are subject to court approval. A settlement will not be binding unless the court has approved it as fair, reasonable and in the best interests of the class. Courts will consider many factors, including: • the likelihood of recovery or likelihood of success; • the amount and nature of discovery, evidence or investigation; and • the proposed settlement terms and conditions. A court also needs to approve class counsel fees. If a court rejects a settlement agreement due to spe- cific concerns, it is common for the parties to renego- tiate the settlement agreement to address the court’s concerns and seek court approval again. Courts will not rewrite or amend settlement agreements on the settling parties’ behalf. Usually, if there are multiple class actions across sev- eral provinces, defendants will require the settlement agreement to cover all proceedings. These settlement agreements will be conditioned on the approval of each settlement agreement in each court. 3.13 Judgments and Enforcement of Judgments Following a trial on the common issues of the class action, a court will render a judgment. A final judgment on the merits of the class action is binding on all class members and sub-class mem- bers, except for those who have opted out (or failed to opt-in).
A judgment on common issues of a class or sub-class only binds the relevant class or sub-class members to the extent that the judgment determines common issues that: • are set out in the certification order; • relate to claims or defences described in the certifi- cation order; and • relate to relief sought by or from the class or sub- class as stated in the certification order. Courts have discretion to distribute amounts awarded in class action judgments. Courts may order that: • the defendant distributes directly to class members the amount of monetary relief to which each class member is entitled by any means authorised by the court, including abatement and credit; • the defendant pay into court or some other appropri- ate depository the total amount of the defendant’s lia- bility to the class until further order of the court; and • any person other than the defendant distributes directly to class members the amount of monetary relief to which each member is entitled by any means authorised by the court. 4. Legislative Reform 4.1 Policy Development Provincial legislations regularly update their class action regimes. In 2019, the Law Commission of Ontario released the Class Actions Objectives, Experiences, and Reforms Final Report, calling for sweeping changes to Ontar- io’s Class Proceedings Act. The Report listed 47 rec- ommendations addressing the following: • pre-certification delay; • class management; • carriage; • certification; • settlement approvals; • settlement distributions; • fee approval; • third-party litigation funding; and • appeals.
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