![]() The representative plaintiff must show it is not plain and obvious that no claim exists and there is “some basis in fact” to meet the remaining elements of the test. They focus on whether the representative plaintiff and the proposed class action meet the elements of the prescribed test: whether the claim: (i) discloses a cause of action (ii) contains an identifiable class (iii) proposes issues common to the class (iv) is the preferable procedure for resolving the complaint and (v) has an appropriate representative plaintiff. Judges hearing certification motions rarely consider the merits of the lawsuit. Rather, it is a procedural matter aimed at screening cases that are not appropriate to be dealt with as a class proceeding. It has become increasingly difficult to successfully oppose class certification in Ontario or other common-law provinces.Ĭertification does not determine the merits of the case. While witnesses providing affidavit evidence are subject to cross-examination, unlike in the United States there is not usually any documentary or oral discovery of the parties prior to the certification hearing. The motion can require extensive preparation of affidavit evidence, expert reports, and written materials, and may take over a year before it is heard by the court. This is done through a motion for certification. ![]() ![]() In Ontario (and all of the other common law provinces except for Prince Edward Island which does not have class proceedings legislation), an action must be “certified” as a class action, a representative plaintiff must be appointed by the court, and common issues or questions of fact or law must be certified by a judge to be determined at trial before a case can proceed as a class action. These implications are discussed below, comparing and contrasting the regimes in Ontario and Québec. It also affects the speed at which the actions will proceed. The result of being subject to different legal regimes means that plaintiffs can seek slightly different relief in each province. This is of greatest procedural consequence when one class action is proceeding in Québec, which has a different legal and procedural regime than the rest of Canada (Québec has a civil law, rather than a common law system). Class actions can proceed in multiple jurisdictions simultaneously and the cases will not necessarily be consolidated. Unlike the United States, Canada does not have a “multidistrict litigation” system to consolidate these cases. It is therefore common to see separate class actions launched in multiple jurisdictions against the same defendant for the same claims. Class Actions Across CanadaĪ class action may be commenced in any common law province, and can be brought on behalf of class members in that province or across multiple regions in Canada. However, the significant financial costs associated with class action litigation can also influence defendants to pay money to settle cases without merit that they might defend in an individual action. For defendants, class actions are beneficial in that the result in the case binds all class members, preventing those class members from pursuing subsequent, separate cases. For plaintiffs, class actions are seen as a tool to increase access to justice, as the costs of litigation are shared among a larger group, and the downside risk is limited as costs in unsuccessful cases are often underwritten by the plaintiffs’ law firm or a third party fund. If the plaintiff recovers money or other remedies in the case, all class members share in that recovery. Unlike the United States, Canada does not have a “multidistrict litigation” system to consolidate multiple cases against the same defendant against for the same claims. Instead of starting separate lawsuits or having each plaintiff named in the case, the representative plaintiff can pursue the claim on behalf of the class. What Is A Class Action?Ī class action is a form of civil action where one or a few plaintiffs can sue a defendant or a number of defendants on behalf of a larger group of people who claim the same type of loss from the same defendant of group of defendants. In our first instalment, we explore the two primary class action regimes in Canada: the common law approach and the Québec civil law procedure. In this series, we will examine the different class action regimes in Canada, and focus on recent class action trends in areas such as privacy, employment and competition law. ![]() Class actions are a well-entrenched form of litigation in Canada, and therefore a significant business risk for Canadian and international companies doing business in Canada.
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