New Bill Brings Major Changes to Ontario Class Action Proceedings

If you are thinking about starting an Ontario class action lawsuit, you need to know about the new major changes to Ontario’s class action law, and how they might affect your case. On July 8, 2020, Bill 161—The Smarter and Stronger Justice Act, 2020 received Royal Assent, significantly altering Ontario’s previous class action law, enacted 28 years earlier.

The July amendments are intended to make Ontario’s class action regime more efficient. The changes also intend to level the balancing of rights between plaintiffs and defendants.

Borden Ladner Gervais LLP noted that the Ontario class action amendments may “embolden defendants in proposed class proceedings to bring a greater number of pre-certification motions, attempting to narrow the scope of proposed class proceedings pending against them.”

The amendments will apply to proposed class action lawsuits Canada that are filed after Bill 161 has been proclaimed into force (yet to be announced).

Ontario Class Actions Move Toward Rigorous Certification Test

One of the most important Ontario class action amendments includes a new subsection, 5(1.1), that establishes a more detailed and onerous standard for satisfying the “preferable procedure” prong of the certification test. Preferable procedure requires that a class proceeding is better than other reasonably available procedures for achieving the three objectives of Ontario class actions­: judicial economy, behaviour modification and access to justice.

Bill 161 revises the previous approach and requires the plaintiff to establish that the proposed class action lawsuit is superior to all reasonably available means of determining class members’ entitlement to relief.

Additionally, subsection 5(1.1) requires that the questions of fact or law common to class members predominate over any questions affecting only individual class members, known as the “predominance requirement” in legal terminology.

The addition of the superiority and predominance requirements aligns Ontario’s certification test more closely with the federal certification test in the U.S. and creates a more rigorous certification test in Ontario.

Ontario Class Action Multi-Jurisdictional Proceedings Changes

Bill 161 introduces new provisions regarding class proceedings commenced in different provinces on behalf of the same proposed class, against the same or affiliated defendants, and concerning the same or similar claims.

The new provisions include a requirement that Ontario judges consider whether to refuse certification on the basis that it would be preferable for all, or some, class members’ claims to be resolved in a multi-jurisdictional class proceeding outside of Ontario. The court can stay an Ontario class action proceeding, based on this consideration, before the certification hearing.

These changes are said to harmonize Ontario’s class actions regime with those of other Canadian provinces, such as Alberta, B.C. and Saskatchewan.

Symmetrical Appeal Rights

Before Bill 161’s amendments, plaintiffs had an automatic right to appeal a dismissal of a certification order. Defendants, on the other hand, did not have an automatic right to appeal an order certifying an Ontario class action lawsuit, and were required to seek leave to appeal.

This “asymmetrical” appeal scheme represented one of the most obvious examples of an imbalance between plaintiffs and defendants in Ontario’s class action lawsuit rules.

The new amendments will level the playing field by conferring upon plaintiffs and defendants in Ontario class action lawsuits an automatic right to appeal a certification decision to the Court of Appeal.

Efficiency and Dispositive Motion Class Action Amendments

Bill 161’s amendments will also facilitate possible early resolutions of some Ontario class action lawsuits by reversing Ontario’s presumptive rule that the certification motion is the first substantive motion to be heard in a class proceeding.

Once the amendments will be proclaimed into force, motions to dispose of class proceedings, or those which narrow the issues or evidence on certification, will be heard and decided prior to the certification motion, unless the court orders that the two motions be heard together.

This amendment is expected to encourage greater efficiency and judicial economy within Ontario’s class action regime.

Mandatory Dismissal for Ontario Class Action Delays

In response to long-standing concerns about Ontario class action lawsuits that are commenced and then remain dormant, the new amendments introduce a mandatory dismissal for delays.

Pursuant to the new provision, Ontario courts are required to dismiss class proceedings commenced in Ontario unless the representative plaintiff files a final and complete certification motion record, or the parties agree in writing to a timetable for service of the representative plaintiff’s certification motion record, or there is an order of the court that the Ontario class action lawsuit not be dismissed and there is a timetable for service of the representative plaintiff’s certification motion record, among a number of other exceptions.

Are you looking to join or start an Ontario class action lawsuit? Do you think Bill 161 will be beneficial to consumers and plaintiffs? Share your thoughts with us in the comments below!

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