Three Legislative Changes Impacting Class Actions

• Published date: 23 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Professional Negligence
• Law Firm: Aird & Berlis LLP
• Author: Mr Steve J. Tenai and Aidan Katz (Summer Student)

In early July 2020, the Ontario Legislature passed the Smarter and Stronger Justice Act, 2019 (Bill 161), which includes several changes to Ontario's Class Proceedings Act, 1992. One of those changes is to the class certification test in Ontario, requiring that issues common to class members must predominate over any individual issues that will be left to be determined.

When these modifications come into effect, they will join two other legislative changes over the last 18 months that impact class action lawsuits:

1. amendments to British Columbia's Class Proceedings Act in late 2018, which will take on greater significance considering the new amendment to the certification test in Ontario and
2. the passage of the Crown Liability and Proceedings Act, 2019, S.O. 2019 ('CLPA') which came into effect in July 2019. The CLPA precludes proceedings against the province of Ontario respecting a 'policy matter' defined to include 'the manner in which a program, project or other initiative is carried out.'

Depending on how these amendments are interpreted by the courts they may make it more difficult to bring a class action in Ontario and, in the case of actions against non-government actors, favour British Columbia as the main forum for class action litigation going forward.

Amendments to Ontario's Class Proceedings Act

Bill 161 includes dozens of amendments to Ontario's class action legislation. These amendments will not have retroactive effect, but will apply to proceedings commenced after the amendments come into force. Some of the key amendments provide for and include:

1. Mandatory dismissal for delay - any proposed class proceeding will be automatically dismissed for delay unless, by the first anniversary of the day on which the proceeding was commenced, the representative plaintiff has filed a 'final and complete' certification motion record. A dismissal can only be avoided otherwise if the parties have agreed in writing, and filed with the court, a timetable for service of the representative plaintiff's motion record for certification or for completion of one or more other steps required to advance the proceeding; or the court has ordered that the proceeding not be dismissed and established such a timetable. Prior to this amendment, lawyers for the representative plaintiff had no deadline in practice to complete their certification record, which in some instances, allowed for additional time to obtain evidence to support their certification motion, especially in circumstances where there might be ongoing government investigations or cross-border proceedings.
2. Support for pre-certification motions to strike and for summary judgment - judges must hear and dispose of any motion filed before the certification motion that may dispose of the proceeding in whole or in part, or narrow the issues to be determined or the evidence to be adduced in the proceeding, unless the court orders that the two motions be heard together. This amendment changes what had been the operating premise that the certification motion should be the first motion that is heard subject to persuading the court otherwise. The court must now hear potentially dispositive motions before or concurrent with certification opening the door to more motions for summary judgment to dismiss an action or strike out certain claims earlier in the process.
3. Consideration of other provincial proceedings - the amendments include various provisions that call upon the court to consider whether it would be preferable for some or all of the issues raised to be resolved in a proceeding commenced in another province instead of in the proposed Ontario proceeding Among other things, a defendant can move before the certification hearing to have the Ontario proceeding stayed on the grounds that it is preferable to have the claims addressed in another provincial proceeding.
4. Leave no longer required to appeal certification - appeals from decisions certifying a class action no longer require leave to appeal from the Divisional Court. All certification decisions will now be heard by the Court of Appeal as of right. Other than in exceptional and unforeseen...