Class Actions In Canada: What To Expect In 2021

• Published date: 11 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: Torys LLP
• Author: Ms Linda Plumpton, Sylvie Rodrigue, Sarah E. Whitmore and Matthew Angelus

With this unprecedented year almost behind us, we are looking ahead to how the events of 2020 may shape the landscape for Canadian class action litigation in 2021 and beyond.

What to expect: in light of the end to waiver of tort and a rise in pandemic-related class actions, allegation of actual damages will be required in class actions.

As the novel coronavirus continues to wreak havoc on the health, wellbeing and livelihoods of Canadians, covid-related class action litigation has proliferated. Class actions have been commenced seeking compensation on behalf of various groups for death, illness, financial losses, services not received, and refunds not provided during the pandemic. Although provincial legislatures have proposed certain liability protections for defendants named in these class actions¹, we anticipate that as the harms of the pandemic crystallize, the number of related class actions will continue to rise.

One hurdle plaintiffs will face in having these claims certified or authorized is the impact of the Supreme Court of Canada's recent decision in Atlantic Lottery Corp Inc. v Babstock, 2020 SCC 19. The Supreme Court finally clarified that waiver of tort is not an independent cause of action and cannot be the sole basis on which a class action is certified². To pass the certification or authorization, plaintiffs alleging that a defendant's negligent conduct caused harms relating to the virus will need to allege actual damage and not simply "exposure to an unreasonable risk."

What to expect: class certification in Ontario will be more onerous.

On October 1, 2020, the first comprehensive amendments to Ontario's class proceedings legislation since its adoption more than 25 years ago came into effect³. We expect these amendments to have a meaningful impact on class action law in 2021.

Arguably the most significant amendment is the introduction to the certification test of a preferable procedure threshold that adopts almost verbatim the predominance and superiority test set out in the rules for class action certification in the U.S. Federal Rules of Civil Procedure.

The amended test signals a more onerous test for certification. If Ontario courts follow the clear legislative intent to raise the bar for certification, there may be new grounds "to protect the defendant from being unjustifiably embroiled in complex and costly litigation⁴." This is clear from the experience in the United States where the predominance and superiority criteria have led...