Class/collective actions in Canada: overview

A Q&A guide to class/collective actions in Canada.

The Q&A gives a high level overview of class/collective actions, including current trends; the regulatory framework; limitation periods; standing and the procedural framework for bringing an action; funding and costs; disclosure; damages and relief; settlement; appeals; alternative dispute resolution and proposals for reform.

To compare answers across multiple jurisdictions, visit the Class Actions Country Q&A Tool.

This Q&A is part of the Class Actions Global Guide.

Christopher Naudie and Éric Préfontaine, Osler, Hoskin & Harcourt LLP
Contents

Overview of class/collective actions and current trends

1. What is the definition of class/collective actions in your jurisdiction? Are they popular and what are the current trends?

Definition of class/collective actions

In Canada, a class action is a form of procedural collective relief brought under specialised class proceedings legislation whereby one or more claimants can seek collective relief for themselves and on behalf of individuals who have similar claims. In a certified class proceeding, a court can adjudicate "common issues" relating to class members in a single proceeding, whereby "success for one is success for all".

Class actions are a relatively recent feature of the Canadian legal system. While there are precedents for class proceedings under traditional representative action rules and under the Québec Code of Civil Procedure, the first modern class proceeding legislation in Canada was adopted in Ontario in 1992. Since then, virtually all of the provinces have adopted similar legislation, and class proceedings have now become a permanent feature of the Canadian legal system.

Over time, Canadian courts have articulated and refined the practice and procedure relating to class proceedings, and have developed a unique and distinctly Canadian approach to collective relief. Most notably, Canadian courts have interpreted and applied class proceedings legislation in a purposive manner that seeks to advance the three goals of class proceedings legislation:

  • Judicial economy.

  • Access to justice.

  • Behaviour modification.

With these goals in mind, the Canadian courts have set a relatively low evidentiary bar for class certification, and class proceedings have been certified in every province in almost every area of substantive law. Settlements in class proceedings have also resulted in payments of millions of dollars of relief to individuals and businesses across Canada.

Use of class/collective actions

For many years, Canada's legal system has had a reputation of being less adversarial and less litigious than that of the US. However, following the gradual adoption of class proceedings legislation across Canada and the increasingly permissive approach to class certification, class proceeding filings have risen steadily. As a result, foreign and domestic businesses that conduct business in Canada have faced increased exposure to class proceedings, across many areas of law. In circumstances where an international regulator has imposed a fine or made an adverse finding against a foreign or domestic business, it has become increasingly common for plaintiffs in Canada to file class proceedings in Canada against the business, often in conjunction with parallel claims that have been filed in the US. In recent years, plaintiff class action firms in Canada have forged relationships with similar firms in the US, and they actively co-ordinate their strategy in Canada in conjunction with plaintiffs in the US.

 

Regulatory framework

2. What are the principal sources of law and regulations relating to class/collective actions? What are the different mechanisms for bringing a class/collective action?

Principal sources of law

The principal source of law governing class actions in Canada is statutory. The legislatures of each province of Canada (with the exception of Prince Edward Island (PEI) and the three territories) have adopted specific class proceedings legislation and/or amendments to the applicable rules of court that recognise class proceedings and set out the fundamental rules governing collective relief on behalf of the class. The statutes in each jurisdiction are very similar, and, to some extent, bear a resemblance with the US federal class proceedings legislation under Federal Rule 23. However, there are also important differences between the statutes of each province, particularly regarding the certification procedure, the availability of opt-in/opt-out mechanisms and the treatment of costs.

There is also a federal regime for class proceedings which was adopted through amendments to the Federal Court Rules in 2002. In addition, in the province of Québec, there has been a unique regime for class actions since 1978, which is currently set out in Articles 571 to 604 of the Québec Code of Civil Procedure.

Principal institutions

Canada has a federal court system that includes both:

  • The Federal Court, administered by the federal government.

  • Provincial and territorial superior courts, administered by the provinces and territories.

The Federal Court is a statutory court that has limited jurisdiction over certain specialised matters arising under federal law (such as immigration, intellectual property and federal taxation). By contrast, the provincial superior courts are courts of inherent general jurisdiction which have broad jurisdiction over a range of claims arising at common law/civil law, equity, as well as under federal and provincial statutes.

While class actions can be (and are) brought before the Federal Court (particularly for claims against the federal government and federally regulated institutions), most class plaintiffs prefer to pursue class proceedings in the provincial superior courts because of their broad inherent jurisdiction over common law/civil law claims. As a result, the vast majority of class actions that are brought in commercial, consumer and personal injury cases are filed before the provincial superior courts.

There is no national consolidation procedure that is available in Canada comparable to the multi-district litigation procedure that exists in the US federal courts, since each province has an entirely separate and sovereign court system. In cases involving a single event that has a diffuse impact on consumers or individuals across Canada, it is quite common to observe multiple actions filed in different provinces, each of which seeks to bring similar claims on behalf of residents within that province. Depending on the cases, there may even be multiple claims filed within each province.

The prospect of bringing or defending multiple proceedings that involve similar claims across Canada is an administrative challenge for both plaintiffs and defendants, and can lead to contradictory rulings. In practice, the management of multiple proceedings is often addressed through informal co-ordination among counsel (for example, through an agreement to argue certification in one jurisdiction first, while holding the other proceedings in abeyance or stayed on consent pending the ruling on certification in the first jurisdiction). The Canadian Bar Association (CBA) has also adopted a protocol to improve the co-ordination of national class actions, particularly at the stage of settlement approval (see Question 24, Multi-jurisdictional class actions). However, in the absence of fundamental legislative and/or constitutional changes to the Canadian federal system, the practice of filing parallel claims in the various provinces is a defining feature of the Canadian class action system.

The substantive law of each Canadian common law province is a combination of applicable federal legislation, provincial legislation and judge-made common law that draws heavily from the British legal tradition. By contrast, Québec is a civil law jurisdiction that is governed by a formal civil code, with heavy influence from the French civilian legal system.

Different mechanisms

The general model for pursuing a class proceeding is similar in each common law province, and is roughly similar to the "certification" procedure that exists in the federal courts in the US. In summary, an individual or business that seeks to pursue a claim must file a statement of claim or complaint, and then seek to have the action "certified" as a class proceeding. At the certification stage, the court applies the certification requirements set out under statute to assess whether the claims are suitable for a class (namely, whether there is sufficient commonality among the claims, and whether a class proceeding is preferable and would advance the three goals of class proceedings legislation). However, there are some material differences between the Canadian and US certification regimes and these differences have resulted in the creation of a uniquely Canadian approach to class certification.

If the action is certified as a class proceeding, the claimant will be designated as a "representative plaintiff" and will have authority to prosecute the case on behalf of the defined class. The trial will then generally proceed in two phases, as follows:

  • The first phase is a trial on common issues, where the court issues a judgment on the common issues which is binding on all class members.

  • If the representative plaintiff and the class are successful at the common issues trial, the case proceeds to the second phase during which any remaining individual issues are tried through individual issue trials.

The general process for class certification is similar in Québec, in that a representative must seek "authorisation" of a class action under the Québec Code of Civil Procedure as a first step in the proceeding. However, there are some fundamental procedural differences in Québec (see Question 6, Authorisation in Québec).

 
3. Are class/collective actions permitted/used in all areas of law, or only in specific areas?

In Canada, class actions are generally available to litigants in all substantive areas of law.

Product liability

Class actions are permitted/used in product liability cases.

Environmental law

Class actions are permitted/used in environmental law cases.

Competition law

Class actions are permitted/used in competition law cases.

Pensions disputes

Class actions are permitted/used in pensions disputes.

Financial services: consumer redress

Class actions are permitted/used in consumer redress cases.

Other areas of law/policy

Other popular types of class actions in Canada include:

  • Securities or shareholder class actions.

  • Consumer protection class actions.

  • Mass tort/negligence class actions.

  • Employee dismissal and overtime class actions.

  • Privacy and data protection class actions.

  • Franchise class actions.

 

Limitation

4. What are the key limitation periods for class/collective actions?

There are no specific limitation periods that govern the filing of a class proceeding. However, the causes of action that are asserted by the representative plaintiff and individual class members may be subject to a specific limitation period under federal or provincial law. If a representative plaintiff fails to commence a claim within the applicable limitation period, the defendant can seek to strike out the claim for being time-barred.

Most provinces of Canada have statutory limitations legislation that sets out a general limitation period that applies to claims at common law/civil law, in equity or under statute, unless more specific provisions apply. For example, in the common law provinces of Ontario, British Columbia and many other provinces, a general two-year limitation period applies to many claims at common law (including claims in contract and tort). By contrast, in the province of Québec, the general limitation period is three years. Under most provincial statutes of limitations, the general limitation period runs from the time when the plaintiff knew or reasonably should have discovered his or her potential claim against the defendant. In addition, many provincial statutes provide for the operation of a longer limitation period that operates independently discoverability. There are also special limitation periods that can apply to the assertion of contribution claims (actions in warranty in Québec) against co-defendants or third parties.

While the class proceeding statutes across Canada do not set out specific limitation periods, many statutes include special tolling provisions that are designed to protect the interests of class members. For example, in most common law provinces, once a class proceeding has been filed, the limitation period (or periods) that govern the claims of putative class members will generally be suspended from the date of filing until certification has been determined. The purpose of this rule is to protect potential class members who wish to wait for the outcome of the certification process before being required to file a claim.

If the proceeding is certified, the suspension of the applicable limitation periods will generally continue until one of the following events occurs:

  • A class member opts out.

  • The certification order is amended to exclude the class member.

  • A decertification order is adopted.

  • The class proceeding is dismissed or abandoned.

  • The class proceeding is settled.

 

Standing and procedural framework for bringing an action

Standing

5. What are the rules for bringing a claim in a class/collective action?

Potential claimants

Under the certification statutes that exist in most provinces, a proposed class action must generally be brought by an individual or corporate plaintiff that is prepared to act as a "representative plaintiff" and is committed to pursuing the action in the interests of the class. To qualify as a representative plaintiff, an individual or corporate plaintiff must generally demonstrate the following:

  • The representative plaintiff will fairly and adequately represent the interests of the class.

  • The representative plaintiff has produced a litigation plan that sets out a workable method of advancing the proceeding.

  • The representative plaintiff does not have an interest that conflicts with the interests of other class members on the common issues for the class.

In Québec, the test to qualify as a representative plaintiff is similar but less demanding, as a representative plaintiff need only demonstrate that it is in a position to represent the members adequately.

In the common law provinces, the proposed representative plaintiff must also demonstrate that it has a viable cause of action. In certain provinces such as Ontario, the proposed representative plaintiff must demonstrate that it has a cause of action against each named defendant in the proceeding. In other provinces such as British Columbia, the proposed representative plaintiff need only demonstrate that it has a cause of action against one named defendant. In a recent decision from the Supreme Court of Canada, the Court held that under the Québec Code of Civil Procedure, the proposed representative plaintiff need only have standing with respect to one named defendant. While the Court's decision was limited to Québec, it remains to be seen whether the Supreme Court's approach will adopted in other provinces.

In most (but not all) provinces, a representative organisation or body can be granted standing to pursue a class proceeding on behalf of a class, but only if a substantial injustice would result to the class if the organisation or body were denied representative status. For example, in Québec, a representative organisation or body can lead a class proceeding provided both that:

  • One of the organisation's members is a member of the proposed class.

  • The interest of the member is linked to the organisation's founding purposes or objects.

By contrast, Ontario's class proceedings statute does not address the potential role of a representative organisation and body. Therefore, the vast majority of class actions in Ontario are brought by individuals or corporations that are members of the proposed class and have a direct interest in the claim.

Definition of class

The proposed representative plaintiff must also seek to represent an appropriate class of claimants. The representative plaintiff must demonstrate the existence of an identifiable class of two or more class members, and the proposed class must be defined in an objective way that has some rational relationship with the proposed common issues in the proceeding. The class must also be defined in a way that does not require a ruling on the merits, and the definition must not be overly broad or unmanageable.

In Québec, there was previously a special rule that limited participation in class proceedings to individuals and certain small businesses, but as a result of new amendments that came into effect in January 2016, this limitation no longer exists. The removal of this restriction has opened up the availability of class proceedings to businesses across Québec and will result in the adoption of broad class definitions in Québec that capture larger amounts of commerce.

Claimants outside the jurisdiction

Most class proceeding statutes do not specifically address whether courts can certify a class that includes extra-provincial or foreign residents. Certain provinces (such as British Columbia, Newfoundland and New Brunswick) specifically allow the certification of classes that include extra-provincial residents, but only if such residents specifically opt-in to the class proceeding (see Question 6).

However, in practice, the courts in Ontario and other provinces have certified numerous classes (both on a contested and settlement basis) that include extra-provincial residents. At the settlement stage, it has become quite common to seek certification of a settlement class in Ontario which includes residents in various other provinces, rather than seeking to certify a settlement class in each relevant province. In fewer cases, the courts have certified classes that include foreign class members. However, this practice remains controversial and open to challenge, given the risk of forum shopping, contradictory rulings and concerns for interprovincial and international comity.

Professional claimants

There are no specific provisions under the provincial class proceedings statutes which prevent professional commercial claimants from operating in Canada. However, there are substantive rules that can prevent or limit the ability of such claimants to purchase a class member's claim in a particular jurisdiction. For example, in the common law provinces, the traditional rules on maintenance and champerty place some limits on the ability of a "stranger" to a proceeding to purchase a class member's cause of action. To date, professional commercial claimants have not been a common or visible feature of the class action system in Canada, particularly compared to other jurisdictions. However, the courts have approved certain third party funding arrangements under which a third party fund certain aspects of a class proceeding in exchange for a financial return, but does not purchase any interest from class members (see Question 10).

Qualification, joinder and test cases

6. What are the key procedural elements for maintaining a case as a class action?

Certification in common law provinces

To advance a claim as a class proceeding, the representative plaintiff must bring an initial application to have the proceeding "certified" or "authorised" as a class proceeding. If the proceeding is successfully certified or authorised, the plaintiff will be appointed as the official representative of the class, and the court will adopt a certification or authorisation order that defines the class and the common issues that will be tried on a class-wide basis.

The test for class certification is generally similar in the common law provinces (that is, all the provinces with the exception of Québec), subject to some minor differences. In general terms, for a proceeding to be "certified" as a class proceeding, a proposed representative plaintiff must meet the following five requirements:

  • The statement of claim discloses a cause of action.

  • There is an identifiable class of two or more persons.

  • The claims of the class members raise common issues.

  • A class proceeding is the preferable procedure in the circumstances.

  • The representative plaintiff will fairly and adequately represent the class.

Cause of action. At this stage, the representative plaintiff must show that its claim discloses a viable cause of action against at least one defendant. The representative plaintiff bears the burden of meeting this requirement, but the burden is relatively low.

In assessing the viability of the representative plaintiff's cause of action, the court will assume that the allegations of the claims are true. The representative plaintiff need only demonstrate that it has asserted an arguable claim (that is, it is not obvious that the claim has no prospect of success).

Identifiable class. The representative plaintiff must demonstrate the existence of an identifiable class of two or more persons. The proposed class must be defined in an objective way that has some rational relationship with the proposed common issues in the proceeding. The class must also be defined in a way that does not require a ruling on the merits, and the definition must not be overly broad or unmanageable. Unlike in other jurisdictions, there is no requirement for the representative plaintiff to demonstrate that the class is so numerous that joinder is impractical (numerosity), or that the claims are typical of the class (typicality).

Common issues. In the common law provinces, the representative plaintiff must demonstrate the existence of one or more common issues. A common issue is an issue of fact or law that is common, but not necessarily identical, to all class members. The representative plaintiff must demonstrate that there is:

  • Some factual basis in support of the common issue.

  • A rational connection between the class definition and the proposed common issues.

The identification of the common issues is one of the most critical stages in the class certification process. The underlying rationale of a class proceeding is that it is more efficient to try a common issue in a single forum, rather than multiple forums involving the duplication of fact-finding and legal analysis. The courts have generally held that an issue is common where it is necessary to the resolution of each class member's claim. A common issue need not be determinative of liability, but it must constitute a substantial element of each class member's claims.

Although it is sufficient to demonstrate the existence of a single common issue, in practice, a representative plaintiff will seek to identify a number of common issues to show the existence of a critical mass of common issues, which will advance the proceeding and satisfy the "preferability" requirement (see below).

Preferable procedure. The representative plaintiff must establish that a class proceeding is a preferable procedure under the circumstances. At the "preferability" stage the court will weigh the number and significance of the proposed common issues, and will consider whether the proposed class proceeding would advance the three goals of class proceeding legislation in Canada (namely, access to justice, judicial economy and behaviour modification).

The test of preferability is a Canadian concept with no equivalent in other jurisdictions. Generally, a class proceeding will be preferable if it is a "fair, efficient and manageable method for advancing the claim", and preferable to other procedures, such as individual proceedings, joinder, test cases or consolidation.

Unlike under Federal Rule 23 in the US, there is no requirement that the common issues must "predominate" over the individual issues. In some Canadian jurisdictions (such as British Columbia and New Brunswick), the courts will consider predominance as one of a number of factors in assessing whether a class proceeding is the preferable procedure for the fair and efficient resolution of the common issues.

Representative plaintiff. The representative plaintiff must fairly represent the interests of the class, have a workable litigation plan, and its interest must not conflict with that of other class members (see Question 5).

Authorisation in Québec

The test for authorisation of a class proceeding in Québec is fundamentally different from that in the common law provinces. Generally, a representative plaintiff must demonstrate the following elements:

  • The claims of the members raise identical, similar or related questions of law or fact.

  • The facts alleged appear to justify the remedies sought.

  • The composition of the group makes joinder or representation by mandate difficult or impracticable.

  • The representative member is in a position to represent the members adequately.

The requirement of predominance or preferable procedure has no equivalent under the Québec test for authorisation. This certification test is widely viewed as more lenient and less demanding than the test for certification in other provinces. In addition, there are procedural advantages for a plaintiff that seeks authorisation in Québec. In particular, a petitioner is not required to file an affidavit in support of its request for authorisation, and the respondent does not have the right to file a formal, written contestation to the motion. Rather, the respondent must seek leave from the court to adduce relevant evidence to contest authorisation, including in order to examine the petitioner.

Minimum/maximum number of claimants

There is no minimum or maximum number of class members that must be identified before a class proceeding can be brought in Canada. However, in a contested certification, the representative plaintiff and the defendant must generally include their best information relating to the size of the class as part of their evidence filed at class certification. In circumstances where the proposed class is large or difficult to identify, the representative plaintiff will usually face arguments that the proposed class is unmanageable. In such a case, the court will consider the size of the class and the corresponding number of individual issues as a factor at the preferability stage (see above, Certification in common law provinces: Preferable procedure).

Joining other claimants

The majority of provincial certification statutes have adopted an opt-out model for class membership which is similar to the opt-out mechanism under the US Federal Rule 23. More specifically, on certification or authorisation of a class, members of the class (regardless of their residence) are deemed to participate in the proceeding unless they take an active step to opt-out of the class. The jurisdictions that apply an opt-out regime include Ontario, Québec, Saskatchewan, Alberta, Manitoba, Nova Scotia and the Federal Court.

Other provinces have adopted a hybrid opt-in/opt-out model that depends on the residence of the class member. In these jurisdictions, on certification or authorisation of a class, members of the class that are resident within the province are deemed to participate in the proceeding unless they specifically opt-out. Members of the class that are resident outside the province can only participate in the proceeding if they specifically opt-in. The jurisdictions that apply a hybrid regime include British Columbia, Newfoundland and New Brunswick.

If the court finds that a class proceeding must be certified or authorised, the court will adopt a certification or authorisation order that addresses, among other things, the process and timelines for class members to exercise their rights to opt-in/opt-out of the class (depending on the jurisdiction). In its order, the court will typically approve the publication or dissemination of the notice to the potential class members, often through a combination of newspaper advertisements, industry notices or postings and direct mailing or e-mailing. The procedure and timeline for opting-in/opting-out can vary depending on the case, but the opt-in/opt-out deadline is typically set between 30 and 90 days from the dissemination of the class notice. In practice, a class member typically only has a single opportunity to opt-in/opt-out of the proceeding.

The existence of an opt-in or opt-out mechanism can potentially have a significant impact on class size. However, in recent experience, very few class members have exercised their rights to opt-in or opt-out in Canada once a class proceeding has been certified or authorised.

Test cases

The class proceedings statutes across Canada do not formally provide for the adjudication of test cases that bind all class members. However, a plaintiff can bring an individual action against a defendant and seek a preliminary determination on a question of fact or law. While such determination will not bind other plaintiffs or class members, the court's determination may assist the plaintiff in assessing whether a class proceeding is suitable or required in the circumstances. In addition, the court's determination can assist in narrowing or defining the scope of the class or the common issues, in the interests of both the plaintiff and defendant.

Once a class proceeding is commenced, a plaintiff or defendant can also bring a preliminary dispositive motion to determine a question of law or fact for the purposes of the proceeding. The rules of court in most provinces allow parties to bring a motion for a preliminary determination (principally through the applicable rules governing summary judgment), and these types of motions are available in the context of class proceedings. However, in practice, many courts will defer consideration of such motions until certification is assessed, or after certification has been determined.

Timetabling

7. What is the usual procedural timetable for a case?

Common law provinces

The practice for setting a class proceeding timetable varies depending on the jurisdiction. In some jurisdictions, such as Ontario, there is a designated roster of specialised class action judges, and new class actions are assigned to a judge on the roster for active case management. In other jurisdictions, such as British Columbia, a class proceeding can be assigned to any superior court judge, and a party must specifically request the appointment of a case management judge.

If a case management judge is appointed, the judge has a broad discretion to manage the proceeding to ensure a fair and expeditious determination of the matter. In most common law provinces, the representative plaintiff commences the certification process by delivering a certification motion, usually consisting of a notice of motion and affidavits that set out evidence in support of class certification. While most provincial statutes require a plaintiff to deliver its certification record within 90 days of the commencement of a proceeding, this rule is rarely enforced and a plaintiff can initiate certification months or years after a claim has been issued. Following service, the court will set a timetable for certification, including deadlines for the exchange of expert affidavits, cross-examinations and the exchange of legal briefs. The case management judge will typically hear the argument on certification, and a certification motion will typically be argued over one to four days (although some hearings can last longer). In some provinces, such as Ontario, there are rules that preclude the case management judge from presiding over the trial on the merits of the case.

Québec

The practice in Québec is significantly different. The representative plaintiff commences the authorisation process by delivering an application for authorisation to bring a class proceeding, before any pleading is issued. Following the issuance of the application, the court typically assigns the case to a co-ordinating judge of the Class Action Chamber who will contact the parties to deal with scheduling matters. Unlike in common law provinces, the court's analysis is focused on the framing of the allegations in the application for authorisation which are deemed to be true for the purposes of the application. Under the Québec procedural rules, a plaintiff is not required to file any affidavit evidence in support of authorisation, and a defendant must seek leave to examine the plaintiff or file responding evidence. Authorisation is usually argued through oral submissions. However, the court can allow the parties to file written submissions. The authorisation motion is typically shorter in Québec, and the co-ordinating judge is usually the same judge who will preside over the trial on the merits of the action.

If an action is certified or authorised, the court will set a timetable for the trial of common issues, including the completion of discovery. After certification or authorisation, it can take several years before the court convenes a trial on the merits to determine the common issues. While many class actions settle prior to trial, an increasing number of class actions proceed to trial. One of the largest class actions in Québec recently led to a 253-day trial.

The timing of the hearing of certification and that of the common issues trial varies widely depending on the:

  • Number of defendants.

  • Complexity of the issues.

  • Need for expert evidence.

  • General court schedule.

However, it is rare for a certification hearing to be set any less than six months after the service of the proposed class plaintiff's certification record, but the Québec Superior Court tries to hold certification hearings within one year of such service.

Effect of the area of law on the procedural system

8. Does the applicable procedural system vary depending on the relevant area of law in which the class/collective action is brought?

Generally, the procedure for class certification in Canada does not vary depending on the substantive area of law in which collective relief is sought. The class proceedings statutes of each province and the federal rules were adopted as general procedural legislation/rules and are not limited to specific areas of law. However, it can be more difficult to seek class certification in certain areas of law (for example, there are statutory and common law claims where a plaintiff must prove individual reliance or harm to establish liability as a matter of substantive law).

There can also be additional procedural requirements imposed in specific areas of law. For example, to bring a securities class proceeding that seeks relief on behalf of individuals who traded securities on the secondary market, a number of provincial securities statutes require a plaintiff to obtain leave from the court. In such circumstances, it is common for a representative plaintiff to bring a motion for leave coupled with a motion for class certification.

 

Funding and costs

Funding

9. What are the rules governing lawyers' fees in class/collective actions?

In class proceedings, a plaintiff's lawyer can act on a standard fee basis, but it is far more common for such a lawyer to act on a contingency fee basis.

Historically, contingency fee arrangements were considered as a form of maintenance and champerty. However, following legislative and judicial developments in the 1990s and 2000s, the rules governing contingency fee arrangements in Canada were liberalised, particularly for class actions. Under the provincial class proceeding statutes that exist in each province, a lawyer is specifically permitted to enter into a fee agreement with a representative plaintiff which provides for the payment of fees and disbursements only if the class proceeding is successful.

However, under these statutes, class counsel must generally seek advance court approval of any requested fee or disbursement payment in order to protect the interests of the class. There is no formal requirement for court approval in Québec, although in practice most class counsel will seek fee and disbursement approval as part of a settlement.

In assessing the reasonableness of the fee request from class counsel, the court will consider a range of factors, including the complexity of the matter and the risk undertaken by class counsel. Most provincial class proceedings statutes allow class counsel to include the use of "multipliers" in contingency agreements, whereby a counsel's base fee is multiplied by a numerical factor to reflect the risk of the proceeding. In recent practice, it is more common for class counsel to simply seek a fixed fee or a percentage fee, although the courts often make a multiplier calculation to assess whether the resulting fee is within a reasonable range. Most class counsel will seek an order directing reimbursement of disbursements from the settlement funds, without any multiplier. In the final analysis, the court will consider whether the fee and disbursement request is fair and reasonable in light of the risks and complexity of the proceeding and the returns for the class. In a number of recent cases, class counsel have received fee approvals of between 25% and 33% of the total settlement funds that have been recovered for the benefit of class members.

 
10. Is third party funding of class/collective actions permitted?

Third party funding arrangements are relatively recent in Canada. Historically, class counsel and representative plaintiffs financed their own proceedings, and did not seek approval of third party funding arrangements. However, with the increasing cost of class certification and the risk of adverse costs awards, class counsel have sought approval of such arrangements in a small number of recent cases.

Although the law in this area is evolving, the courts in two leading jurisdictions have concluded that third party funding arrangements are permitted in certain circumstances. The Ontario Superior Court approved the first third party funding arrangement in 2011, and the Supreme Court of British Columbia approved its first arrangement in 2014. Based on the emerging case law, a third party funding agreement must:

  • Be transparent and disclosed to the court.

  • Be subject to court approval to ensure that there is no abuse or interference with the administration of justice.

  • Not compromise or impair the lawyer's duty of loyalty and confidentiality.

  • Not impair the lawyer's judgement and conduct of the litigation on behalf of the class.

The courts have also noted that the nature and content of third party funding arrangements is relevant to the assessment of class certification, as the arrangement can affect the issue of whether the representative plaintiff is appropriate (see Question 6). For example, the court must ensure that the representative plaintiff retains the ability to instruct counsel independently, rather than being directed to do so by the third party funder.

 
11. Is financial support available from any government or other public body for class/collective action litigation?

A representative plaintiff with a worthy claim can seek financial support in the provinces of Ontario and Québec. Both provinces have created separate funds for the purposes of aiding plaintiffs to bring class proceedings.

In Québec, a representative plaintiff can request the payment of a portion of its legal fees and disbursements from the Fond d'aide aux actions collectives. In Ontario, a representative plaintiff can apply to the Class Proceedings Fund for assistance with the payment of disbursements and for indemnification for adverse costs awards. However, a representative plaintiff cannot seek payment of its legal fees through the Class Proceedings Fund. Both funds apply strict criteria, and not all applicants receive funding. In addition, both funds set terms of reimbursement if the class action results in a settlement or award of damages. For example, the Class Proceedings Fund receives a levy of 10% on any awards or settlements in funded proceedings.

 
12. Are other funding options available to claimants in class/collective actions?

The most common methods for funding a class proceeding in Canada include:

  • Self-funding.

  • Funding through a contingency agreement and/or indemnity agreement with class counsel (see Question 9).

  • Funding through government-sponsored funds (see Question 11).

  • Third party funding agreements (see Question 10).

Representative plaintiffs and class counsel do not generally rely on after-the-event insurance policies that insure against adverse costs awards. While such policies have been adopted in the UK, the current jurisprudence in Canada relating to third party funding suggests that any such agreements require advance disclosure and court approval to be enforceable. In addition, such insurance policies typically contain terms that permit the insurer to have a direct say in the conduct and/or settlement of the action, and it questionable whether such terms would be enforceable in Canada. However, given the development of the after-the-event insurance market in the UK, it is likely only a matter of time before litigants test the availability of such funding in Canada.

Costs

13. What are the key rules for costs/fees in class/collective action litigation?

The approach to costs in class action litigation in Canada varies from jurisdiction to jurisdiction. In most cases, the general costs rules that govern civil proceedings also apply to class proceedings. However, there are special rules in each jurisdiction which modify or mitigate the impact of general rules, partly to facilitate class proceedings and advance the goal of access to justice. In addition, awards of costs are subject to a wide degree of judicial discretion. Courts have been reluctant to impose cost awards in a way that would deter litigants from pursuing future class proceedings in meritorious cases.

In Ontario and Québec, there is a general "loser pays" costs rule that applies to civil proceedings. This means that the losing party to a motion, application or action must pay a portion of the other party's costs (and certain disbursements) according to a court tariff. Although this rule applies to class proceedings, in both jurisdictions, the representative plaintiff (not individual class members) is generally responsible for adverse costs awards that relate to the common issues. In Ontario, the court also has discretion to modify the application of this costs rule in cases involving a test case, a novel point of law or a matter of public interest. In Québec, cost awards are usually limited to relatively small amounts. However, the court may award the representative plaintiff an indemnity for disbursements and an amount to cover legal costs, payable out of the amount recovered collectively and before individual recovery of claims.

In practice, the courts have often exercised their discretion to reduce or eliminate costs awards against unsuccessful plaintiffs. However, courts have from time to time made significant costs awards in favour of successful defendants, including in cases where the court has denied certification.

In British Columbia, Saskatchewan, Manitoba, Newfoundland, Labrador and for proceedings before the Federal Court, the legislature has adopted special "no costs" rules that apply specifically in class actions. Under these "no costs" rules, the court is generally not permitted to award costs against any party at any stage of the proceeding, including the certification motion. However, in these jurisdictions, a party will still generally be responsible for its own disbursements, and the court can award costs in narrow circumstances where:

  • A party has engaged in vexatious behaviour.

  • A party has delayed the proceedings.

  • There are exceptional circumstances that warrant an award of costs.

Under the legislation in Alberta, courts only have discretion to award costs in accordance with the existing rules of court, which generally adopt a "loser pays" regime. In Nova Scotia and New Brunswick, the courts have a similar discretion, but there is also a rule that protects class members other than the representative plaintiff from adverse costs awards. However, in Nova Scotia, there is a special rule that allows the court to apportion costs between the parties according to their liability.

A representative plaintiff is potentially subject to an adverse costs award if it discontinues its claim before the conclusion of the action, particularly if the defendant has incurred significant costs in defending the action. However, an individual class member will generally not be liable for costs if he chooses to opt out before the opt-out deadline. An individual class member will generally not liable for costs associated with the certification and/or trial of the common issues, but may be liable for costs associated to its individual claims.

Where costs are payable in Canada, costs are calculated according to a court tariff. Therefore, the successful party will usually only recover a portion of its actual costs. In practice, class counsel frequently indemnify the representative plaintiff against an adverse costs award. As a result, class counsel will usually bear the risk associated with an adverse cost award on an unsuccessful motion or application. In addition, where a request for funding has been approved by the class action funds in Ontario and Québec (see Question 11), the fund may cover adverse costs awards and certain disbursements.

On settlement of a class proceeding, a defendant will typically agree to pay a fixed settlement amount in favour of the class on the understanding that the proceeding will be dismissed "without costs" (that is, without any cost award under traditional costs rules). At settlement approval, the plaintiff typically applies for a fee award that includes recovery of its costs and disbursements. In calculating a fee award, the court considers any past costs awards that have been made to date in the proceedings.

Key effects of the costs/funding regime

14. What are the key effects of the current costs/funding regime?

The "loser pays" costs rules and the risk of an adverse costs award can influence the dynamics of a class proceeding. In particular, these rules impose some discipline on the conduct of a class proceeding, as they incentivise parties to avoid unmeritorious claims or motions that can otherwise delay the proceedings.

However, the impact of these rules is mitigated by:

  • The adoption of special "no costs" rules in certain jurisdictions for class proceedings.

  • The broad discretion of Canadian courts when awarding costs.

  • The reluctance of Canadian courts to impose significant costs awards against representative plaintiffs as this may hinder access to justice.

  • The existence of indemnification agreements with class counsel and other third party and governmental funding arrangements.

In practice, costs rules have more impact on the decision-making of defendants than representative plaintiffs, as a result of the existence of indemnification arrangements between representative plaintiffs and class counsel.

For more details on the key rules for costs in class proceedings see Question 13.

 

Disclosure and privilege

15. What is the procedure for disclosure of documents in a class/collective action?

The procedure for disclosure of documents in class proceedings is governed by the applicable rules of court in each Canadian province, and is very similar to the procedure for disclosure in normal civil proceedings. However, there are some important practice rules that govern the timing of "merits" discovery in a class proceeding, and there are limits on the ability of a defendant to conduct discovery of individual class members.

In civil proceedings, a litigant has a general obligation to disclose documents that are in its possession, power or control and which are relevant to the issues in the proceeding. This obligation is normally triggered by the exchange of pleadings, once the matters in issue have been clearly set out by the parties.

In a class proceeding, a defendant must deliver a statement of defence or response to a pleading. However, in a number of provinces, the courts have indicated that it is acceptable for a defendant to defer the filing of a statement of defence or response until after class certification or authorisation. While this rule is subject to exceptions and can be challenged, in practice, most representative plaintiffs are prepared to consent to such a deferral. In other words, a defendant in a class proceeding is typically not required to deliver a pleading or to participate in "merits discovery" before the certification or authorisation hearing.

During the certification process, the representative plaintiff and the defendant(s) must produce and disclose documents that are relevant to class certification. However, this form of "certification discovery" is usually conducted through the exchange of affidavits and the conduct of cross-examinations. In Québec, the practice is fundamentally different, since a defendant is required to seek leave to deliver responding materials or to cross-examine a representative plaintiff.

Once a class proceeding has been certified or authorised, a representative plaintiff and the defendant must produce all documents in their possession, power or control which are relevant to the common issues. It is the party that possesses the document who is responsible for collection and the determination of relevance. While an opposing party can challenge such determinations through discovery motions, document disclosure is usually conducted on a co-operative basis. In Québec, the disclosure of documents is only made on specific request of the party seeking to obtain such documents. The request can take place both before the examination for discovery (by way of subpoena) as well as after the examination (by way of undertaking).

In contrast with other jurisdictions, there are limits on the ability of litigants in a class proceeding to examine or obtain documents from a non-party. In Canada, a party that seeks to conduct discovery of non-parties must both obtain the leave of the court and generally show that a non-party's evidence is sufficiently relevant to a material issue in the action. The court must generally be satisfied that:

  • The party seeking discovery of the non-party could not obtain the information elsewhere.

  • It would be unfair to require a party to proceed to trial without this information.

  • The non-party discovery will not lead to undue delay or unreasonable expenses.

In most jurisdictions, there are limits on the ability of a defendant to conduct discovery of individual class members regarding the common issues. As a general rule, the defendant must first seek to exhaust its rights of discovery of the representative plaintiff, and must then seek permission from the court. In considering whether to allow the discovery of individual class members, the court considers the following factors:

  • The stage of the proceeding.

  • The existence of sub-classes.

  • The need for discovery in view of the claims and defences that have been advanced.

  • The value of individual claims.

  • Whether discovery would represent an undue burden for class members.

 
16. Are there special considerations for privilege in relation to class/collective actions?

There are rules that protect legal privilege in every province in Canada. The three privileges that arise most commonly in civil litigation and class proceedings are:

  • Solicitor-client privilege. This privilege applies to communications between a lawyer and his/her client for the purpose of obtaining legal advice

  • Litigation privilege. This privilege applies to communications between lawyers, clients and third parties with the dominant purpose of preparing for current or reasonably contemplated litigation

  • Settlement privilege. This privilege applies to communications between parties for the purposes of resolving current or reasonably contemplated litigation

Particular rules govern these privileges, and there are additional privileges under Canadian law. In civil litigation, parties must identify any documents subject to a claim of privilege, but are generally not required to disclose or produce such documents absent an order of the court.

There are no special rules of privilege that apply specifically to class proceedings in Canada. However, courts have developed a set of rules that govern communications between a defendant and a class member at various stages in the certification or authorisation process:

  • During the period of time after a class proceeding has been commenced and before class certification or authorisation, a number of courts have held that there is a sui generis relationship between class counsel and potential class members, and courts have jurisdiction to protect the interests of potential class members. In exercising their jurisdiction, the courts have placed limits on the ability of a defendant to communicate directly with class members, and have recognised that communications between class counsel and class members may be subject to privilege.

  • During the period of time after a class proceeding has been successfully certified or authorised, the courts have recognised the existence of a solicitor-client relationship between class counsel and the class members which fully attract the protections of legal privilege. In such circumstances, there are greater limits on the ability of a defendant to communicate with class members, subject to exceptions (for example, where there is an ongoing commercial relationship between the defendant and the class members).

 

Evidence

17. What is the procedure for filing factual and expert witness evidence in class/collective actions?

In Canada, there are no special rules that govern the filing of factual or expert evidence in class proceedings, subject to some narrow exceptions. The procedural requirements for filing evidence, and the rules of admissibility governing evidence, are set out in the applicable rules of court of the province as well as at common law and under applicable evidentiary statutes.

In the common law provinces, a representative plaintiff has an evidentiary burden of proof in respect of most of the certification requirements (namely, the "some basis in fact" standard), and must adduce admissible evidence in respect of these requirements. A defendant has an opportunity to contest that evidence, and the parties normally adduce evidence by way of affidavit. An affidavit must satisfy the normal rules of admissibility and some minimum content requirements (for example, many jurisdictions require the parties to address the estimated class size), but there are otherwise no special rules governing the tendering of affidavits in a class proceeding.

In complex cases, it is common for each party to file an affidavit from a "commonality" expert who will typically give an opinion on whether there is a class-wide method for assessing the proposed common issues. There are no special requirements for the filing of such evidence, but the expert's opinion is only admissible if the expert has complied with the rules on admissibility of expert evidence in the relevant jurisdiction, including independence requirements.

Once affidavits have been exchanged, a party has the right to conduct a cross-examination of a witness of the opposing party in respect of the certification issues. The cross-examination is typically conducted outside of court before an official court reporter who prepares a written transcript. In the common law provinces, lawyers normally argue the merits of certification based on a written evidentiary record that is filed with the court (that is, affidavits, transcripts from cross-examinations and written answers to undertakings). The practice in Québec is fundamentally different, as a defendant must seek leave to file responding evidence and conduct a cross-examination. While it is possible in certain limited circumstances to obtain leave to file expert evidence in class proceedings in Québec, it is very rarely accepted at the authorisation stage.

Once a class proceeding has been certified or authorised, the parties will conduct discovery in respect of the common issues and then a trial on the common issues. In advance of such trial, the parties that seek to produce expert testimony at trial must comply with the procedural and evidentiary rules of the province. In most provinces, parties must exchange expert reports well in advance of the trial, and such expert reports must satisfy certain requirements of substance and form. Depending on the case, the case management judge may also set certain deadlines for the exchange of expert reports in advance of the trial.

 

Defence

18. Can one defendant apply to join other possible defendants in a class/collective action?

Joining other defendants

In every Canadian jurisdiction, a defendant to a class proceeding can bring:

  • A cross-claim against a co-defendant.

  • A third party claim that joins another defendant as party to the proceeding.

The procedure governing such claims is set out in the rules of court of the relevant jurisdiction. There are no special rules and limits governing such claims under the class proceedings statutes of the various provinces. However, the existence of such claims and additional parties is a factor that the court will consider at the certification or authorisation stage. In addition, the courts can direct such claims to be adjudicated separately from the common issues, particularly if they are pursued after class certification or authorisation, and are not identified in the common issues.

Rights of multiple defendants

Canadian courts have recognised the existence of a "common interest privilege", namely, parties with a common interest in actual or pending litigation can share solicitor-client communications without waiving their right to privilege. Therefore, it is common for defence counsel in a class proceeding involving multiple defendants to engage in communications relating to a co-ordinated defence, and to assert that such communications are protected from disclosure to the plaintiff.

Defendants are not required to enter into a formal written agreement to assert common interest privilege. However, in complex multi-party litigation, multiple defendants often enter into a "joint defence agreement" or a "common interest privilege agreement" that formalises their claim of common interest privilege and sets out rules for the sharing of confidential information. Additionally, defendants can include a tolling arrangement that suspends any limitation periods that may apply to claims for contribution or warranty against each other while the claim is being litigated. In such circumstances, the defendants will typically claim that the joint defence agreement itself is privileged, and is protected from disclosure to the representative plaintiff.

Multiple defendants can engage a single lawyer under a joint retainer. The availability and rules governing joint retainers are regulated by the professional rules governing the legal profession in each province. Under such retainers, the lawyer will typically owe duties of loyalty to each client, and will be required to disclose confidential information to each client. In addition, the lawyer will be unable to act in matters or circumstances where the interests of the respective defendants conflict.

Multiple defendants can also engage a joint expert, and can enter into cost sharing arrangements relating to the joint expert. Where multiple defendants are opposing class certification or authorisation, there are significant advantages in engaging a joint expert to testify on behalf of the defendants, or simply to consult on the opposition to class certification or authorisation. However, the joint expert may be subject to certain professional duties that limit his ability to advise on matters where the interests of the respective defendants conflict.

 

Damages and relief

19. What is the measure of damages under national law in the field of class/collective actions?

Damages

The ordinary principles governing the award of damages apply in class proceedings in Canada. Therefore, in a certified or authorised class proceeding, the representative plaintiff and each class member must prove their individual claim for compensatory or other damages.

The nature and scope of monetary relief depends on the underlying cause of action. While the assessment of damage is traditionally regarded as an individual issue that depends on the assessment of the harm suffered by each class member, most class proceedings statutes in Canada provide that the existence of a claim for damages that requires individualised assessment is not a bar to certification on its own. However, the existence of individual claims for damages is typically a factor that is weighed at the preferability stage when considering whether the action should proceed as a class proceeding (see Question 6).

In most provinces, there are special provisions under the governing class proceeding statutes that allow a representative plaintiff to rely on statistical evidence for the purpose of determining the amount or distribution of damages to class members. In addition, under these statutes, the courts can conduct an aggregate assessment of damages on behalf of all or certain groups of class members in certain circumstances. Under these provisions, the courts can also allocate shares on an average or proportional basis if it would be impractical or inefficient to either:

  • Identify the class members entitled to a share in the aggregate award.

  • Determine the exact shares that should be allocated to individual class members under the aggregate award.

Under these unique provisions on aggregate awards, Canadian courts have certified the aggregate assessment of damages as a common issue in a number of cases. However, in a recent decision, the Supreme Court of Canada has placed limits on the ability of representative plaintiffs to invoke these provisions to establish other common issues at the certification stage.

In a number of jurisdictions, an individual plaintiff can seek punitive damages, although such damages are only awarded in narrow circumstances for certain causes of action where the defendant has engaged in malicious, oppressive and high-handed conduct that offends the court's sense of decency. Many courts regard the determination of punitive damages as an individual issue, but some courts have certified the determination of punitive damages as a common issue.

Recovering damages

A defendant can bring a claim against another person for contribution, indemnity and warranty provided that the defendant has an actionable right of recovery against another defendant or person and the limitation period for such claim has not lapsed.

If the person is not already a party to the proceeding, the defendant can take steps to join such person as a third party to the action by way of joinder proceedings (see Question 18, Joining other defendants). There are no rules specific to class actions regarding such claims, and the rules of court in the relevant jurisdiction therefore apply.

Interest on damages

There are no special rules that apply to the payment of interest on monetary claims in class proceedings. There are rules governing the award of pre-judgment and post-judgment interest in each province, and these rules generally apply to the claims of the class members who are resident of that particular province.

 
20. What rules apply to declaratory relief and interim awards in class/collective actions?

A representative plaintiff can seek declaratory relief and interim awards on behalf of class members under the applicable procedural rules of each Canadian province. There are no special rules and limits governing the award of such relief under the Canadian class proceedings statutes. A representative plaintiff that seeks to obtain declaratory relief/interim award in favour of all class members will typically seek to certify such relief as a common issue, and the court will consider the relief at the common issues trial.

 

Settlement

21. What rules apply to settlement of class/collective actions?

Settlement rules

In Canada, a representative plaintiff must obtain court approval to implement a proposed class settlement. To obtain court approval, the representative plaintiff must generally adduce evidence that demonstrates that the proposed settlement is fair, reasonable and in the best interests of the class. If the court approves the settlement, the settlement (including any releases) becomes binding on all class members within the relevant jurisdiction.

In advance of the settlement approval hearing, the representative plaintiff will usually seek certification or authorisation of a proposed class for settlement purposes. Unlike in the US, the test for class certification or authorisation at the settlement stage is more permissive than the test that applies to a contested motion. Once the court has certified a settlement class, the representative plaintiff will distribute a class notice that describes the terms of the settlement. The class members will have an opportunity to opt out of the proceeding and the settlement if they have not had a prior opportunity to do so. Otherwise, the class members will receive notice of the settlement approval hearing and will have an opportunity to file objections with the court. If the court approves the settlement and a class member has not opted out, the class member will generally be bound by the settlement.

There are different rules across the provinces on whether a representative plaintiff can conclude a settlement with a defendant before class certification or authorisation. For example, in Ontario, Québec, Alberta, New Brunswick and in proceedings before the Federal Court, the applicable rules appear to require court approval for any settlement regarding a proceeding commenced under the statute or that is "subject of an application for certification", even if the proceedings have not been certified. In other provinces, including British Columbia, Saskatchewan, Manitoba, Nova Scotia and Newfoundland, a proposed class action can arguably be settled without court approval if it has not been certified.

Separate settlements

Where the representative plaintiff has brought a class proceeding against several defendants, the representative plaintiff can enter into partial settlements with some but not all defendants. Each partial settlement is subject to court approval (if required) (see above, Settlement rules). However, where there are potential claims of contribution, indemnity or warranty, it is common for the settling defendant to seek a bar order (also known as a waiver of solidarity order in Québec) to bar future contribution claims from the non-settling defendants as part of the settlement.

 

Appeals

22. Do parties have a right to appeal decisions relating to class actions, such as a decision granting or denying certification of a class action?

Subject to certain narrow exceptions, a party can appeal any decision made under class proceedings legislation in Canada, including judgments regarding class certification or authorisation and those regarding common issues. However, the specific appeal procedures differ depending on the relevant jurisdiction as well as the type of decision under appeal.

In addition, in certain jurisdictions, a party may be required to seek advance permission or leave from the court in order to bring an appeal. For example:

  • In Ontario, a party can appeal against an order refusing class certification as of right, but must obtain leave from the court to appeal a partial or total certification order.

  • In Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Newfoundland, a party must seek leave from the court to bring an appeal regardless of whether the court granted or refused class certification.

  • In British Columbia, Alberta and before the Federal Court, a party has an automatic right of appeal regarding class certification and is not required to seek leave.

  • In Québec, the legislature has adopted an asymmetrical right of appeal in favour of the representative plaintiff. Under these rules, a proposed representative plaintiff can appeal the denial of a judgment authorising the class action as a right, but a defendant's right of appeal against a judgment authorising a class action is subject to leave from the Court of Appeal.

In all the provinces, a party has the right to appeal a final judgment on the common issues or a final award of aggregate relief. The representative plaintiff generally has authority to pursue rights of appeal on behalf of the class, except for appeals relating to individual claims. However, in certain provinces, if the representative plaintiff is unwilling or unable to appeal a decision, a class member can seek leave from the court to bring the appeal in place of the representative plaintiff.

The procedures for a representative plaintiff, defendant or class member to appeal a decision relating to individual claims vary significantly across jurisdictions. In most provinces, a party must seek leave from the court to appeal such decisions, particularly for judgments involving small amounts.

 

Alternative dispute resolution

23. Is alternative dispute resolution (ADR) available in class/collective actions?

Preferable procedure requirement

In Canada, there are alternative means for litigating and resolving claims on a collective basis. As part of the "preferable procedure" requirement for certification in the common law provinces, the court must consider alternative means for litigating or resolving the dispute, including potential avenues of redress other than court actions. For example, the court may consider whether a joinder of claims, the commencement of a traditional representative action, the advancement of a test case, the adoption of an internal claims process or the existence of a regulatory regime would be an effective means of litigating or resolving the dispute. However, given the limitations associated with some of these procedural mechanisms, the court may conclude that a class proceeding is the "preferable procedure" under the circumstances.

Mediation

The use of mediation is well-established in Canada and is available for use in class action proceedings. In certain jurisdictions, parties to civil proceedings (including class action proceedings) are required to conduct mediation before the trial. In the absence of such a requirement, the parties to a class proceeding must specifically consent to mediate their dispute.

Arbitration

The use of binding arbitration is also well-accepted in Canada, and there is legislation that facilitates the use of arbitration in every province as well as at the federal level. However, the availability of binding arbitration in a class action proceeding remains shrouded in uncertainty. In short, the statutes that relate to class proceedings across Canada make no reference to arbitration. Conversely, the commercial arbitration statutes across Canada do not provide for any mechanism to impose binding arbitration awards on absent class members. As a result, it is uncertain whether there is legislative authority to impose binding arbitration on class members who have not consented to arbitration.

The potential availability of arbitration in national class actions is further complicated by the diversity of statutes across the provinces, and the fact that certain provinces bar the enforcement of contractual arbitration provisions as against consumers under consumer protection legislation. However, given the strong judicial endorsement of private arbitration as an alternative to traditional litigation, there is continuing debate as to whether binding arbitration is available as a mechanism to litigate issues in the context of a certified or authorised class action proceeding.

 

Proposals for reform

24. Are there any proposals for reform concerning class/collective actions?

There is an ongoing review of class proceedings legislation in the various provinces, particularly in the light of the significant impact that class proceedings have had on the Canadian legal environment. As noted above, Québec adopted some important amendments to its legislation as part of its broader reform of its Code of Civil Procedure. However, the two most current proposals for reform relate to multi-jurisdictional class actions and the Law Commission of Ontario's review of Ontario's class proceeding legislation.

Multi-jurisdictional class actions

The Canadian Bar Association (CBA) formed a task force on class actions in 2010 to address the co-ordination problems associated with overlapping class actions commenced in multiple jurisdictions across Canada. The task force expressed concern that the multiplicity of proceedings could create confusion regarding the size and composition of class membership, and could result in conflicting and duplicate rulings.

In August 2011, the CBA Council adopted an informal protocol to facilitate the co-ordination of multi-jurisdictional class actions in Canada, particularly at the stage of settlement approval. The protocol has been adopted by a number of provinces, and the courts have applied the protocol in a number of cases to convene settlement approval hearings in multiple courts through the use of video-conferencing.

Law Commission of Ontario's class actions project

The Law Commission of Ontario is currently conducting a comprehensive review of Ontario's class proceedings statute with a view to assessing whether the statute is achieving its goal of improving access to justice, providing judicial economy and encouraging behaviour modification among defendants. The Law Commission of Ontario completed the project's first scoping phase in 2013, and identified a number of core issues for analysis. The project has been recently placed on hold by the Law Commissioner, but will likely be renewed in the future.

 

Online resources

Canada (Federal)

W http://laws-lois.justice.gc.ca/eng/regulations/SOR-98-106/index.html

Description. Part 5.1 of the Federal Court Rules.

British Columbia

W www.bclaws.ca/civix/document/id/complete/statreg/96050_01

Description. Class proceedings legislation of British Columbia.

Alberta

W www.qp.alberta.ca/documents/Acts/C16P5.pdf

Description. Class proceedings legislation of Alberta.

Saskatchewan

W www.qp.gov.sk.ca/documents/english/statutes/statutes/c12-01.pdf

Description. Class proceedings legislation of Saskatchewan.

Manitoba

W https://web2.gov.mb.ca/laws/statutes/ccsm/c130e.php

Description. Class proceedings legislation of Manitoba.

Ontario

W www.ontario.ca/laws/statute/92c06

Description. Class proceedings legislation of Ontario.

Québec

W http://legisquebec.gouv.qc.ca/en/showtdm/cs/C-25.01

Description. Class proceedings legislation of Québec (Book VI, Title III of the Québec Code of Civil Procedure).

New Brunswick

W http://laws.gnb.ca/en/showfulldoc/cs/2011-c.125//20150625

Description. Class proceedings legislation of New Brunswick.

Nova Scotia

W www.canlii.org/en/ns/laws/stat/sns-2007-c-28/latest/sns-2007-c-28.html

Description. Class proceedings legislation of Nova Scotia.

Newfoundland and Labrador

W http://assembly.nl.ca/legislation/sr/statutes/c18-1.htm

Description. Class proceeding legislation of Newfoundland and Labrador.



Contributor profiles

Christopher Naudie, Partner (Toronto)

Osler, Hoskin & Harcourt LLP

T +416 862 6811
F +416 862 6666
E cnaudie@osler.com
W www.osler.com

Professional qualifications. Lawyer, Bar Admission Ontario, 1997

Areas of practice. Class actions; competition/anti-trust litigation; privacy litigation; corporate governance and securities litigation; regulatory investigations and white collar defence; risk management and crisis response; US cross-border legal services.

Non-professional qualifications. LLM, Harvard Law School; BCL/LLB, McGill University (Gold Medallist); BA (Honours), McGill University

Recent transactions

  • Representing an international bank in class actions relating to gold pricing.
  • Representing a leading international airline in regulatory investigations and parallel consumer class actions across Canada.
  • Representing an international rental car company in consumer class actions across Canada.
  • Representing an international hotel chain in consumer class actions across Canada.
  • Representing an international manufacturer of chocolate products in regulatory investigations and parallel consumer class actions across Canada.
  • Representing a global manufacturer of smart phones in respect of consumer class actions across Canada.
  • Representing a leading wireless carrier in Canada in defending an enforcement proceeding brought by the Commissioner of Competition for alleged deceptive marketing practices.
  • Representing a leading producer of computer/monitor components in defending consumer class actions across Canada.
  • Representing a major US chemical producer in defending a class action relating to the sale and distribution of engineering resins in the automotive sector.

Languages. English, French

Professional associations/memberships

  • Canadian Bar Association, Competition Law Section (Vice-Chair, Criminal Matters).
  • Ontario Bar Association, Class Actions Section (Executive).
  • American Bar Association, Section of Antitrust Law.
  • American Bar Association, Section of International Law.
  • Harvard Law School Association of Toronto (President).

Publications and speaking engagements

  • "Canadian Police Charge SNC-Lavalin With Corruption, Fraud", Wall Street Journal, February 19, 2015.
  • Developments in National Class Actions, Canadian Institute: Class Actions Forum West, May 21, 2015.
  • Privacy Class Actions in Canada, Advocates Society: Class Actions Advocacy, March 4, 2015.
  • Class Action Litigation, The Law Society of Upper Canada: A Bootcamp for Litigators, October 2, 2014.
  • National Class Actions in Canada, Osgoode Hall Law School: 10th National Symposium on Class Actions, April 4, 2014.
  • Obtaining Evidence in Canada for U.S. Litigation, ALM Cross-Border Litigation Forum, September 12, 2012.
  • The Certification of Antitrust Class Actions: The Recent Lessons from Canada and The Enduring Appeal of Illinois Brick, American Bar Association, Section of International Law, September 2010.

Éric Préfontaine, Partner (Montreal)

Osler, Hoskin & Harcourt LLP

T +514 904 5282
F +514 904 8101
E eprefontaine@osler.com
W www.osler.com

Professional qualifications. Lawyer, Bar Admission Québec, 2001

Areas of practice. Class actions; franchise litigation; insolvency and restructuring litigation; international commercial arbitration and ADR.

Non-professional qualifications. LLB, Université de Montréal (Civil Law); BA (Political Science), Université du Québec

Recent transactions

  • Representing Amex Bank of Canada, in a class action regarding foreign exchange conversion fees charged on credit cards.
  • Representing Irving Oil, in its successful defence against a motion for authorisation to institute a national class action regarding alleged miscalibration of distributor-type fuel pumps.
  • Representing General Motors of Canada Limited, in relation to various actions brought by former Québec dealers following out-of-court restructuring by GM Canada in 2009 to 2010.
  • Representing Imperial Tobacco Canada Limited, in the Québec Medicaid action taken by the Québec Government against tobacco manufacturers.

Languages. English, French

Professional associations/memberships

  • Barreau du Québec.
  • Canadian Bar Association.
  • The Advocate's Society.

Publications

  • Moderated session "Navigating U.S. and Canadian Cross-Border Evidentiary Issues: Current Trends, Critical Analysis and Successful Strategies" and co-authored paper "Obtaining Evidence in Canada for U.S. Litigation" presented at the Cross-Border Litigation Forum in New York City on 12 September 2012.
  • "Multi-Jurisdictional Litigation: ensuring consistency & efficiency" conference presented on April 17, 2012 during the Canadian Corporate Counsel Association World Summit and Spring Conference 2012.
  • "Vers un libéralisation de la preuve appropriée avant l'autorisation?", conference presented on 29 October 2009 during the Annual Conference on Class Actions organised by The Canadian Institute.

Deborah Glendinning, Partner (Toronto), Chair of National Litigation Department

Osler, Hoskin & Harcourt LLP

T +416 862 4714
F +416 862 6666
E dglendinning@osler.com
W www.osler.com

Professional qualifications. Lawyer, Bar Admission Ontario, 1990

Areas of practice. Class actions; corporate governance and securities litigation; food products litigation.

Non-professional qualifications. LLB, University of Ottawa; BA, University of Toronto

Recent transactions

  • Representing Imperial Tobacco in nation-wide product liability class actions and healthcare cost recoupment actions.
  • Representing Microsoft in its successful defence of a class action to test the enforceability of online signup agreements.
  • Representing Amex Bank of Canada in class actions in Ontario and Québec related to credit card agreements and consumer banking services.
  • Representing several financial institutions class actions and regulatory investigations arising out of interest calculations and credit charges.
  • Representing Proctor & Gamble in a series of pet food class actions.
  • Representing Inco in a class action for personal injury and property damage in connection with an environmental discharge.

Languages. English

Professional associations/memberships

  • Law Society of Upper Canada.
  • Canadian Bar Association.
  • Metropolitan Toronto Lawyers Association.
  • Advocate's Society.
  • American Bar Association.

Publications

  • The Business of Litigation, Getting Ahead, Panelist, Benchmark Women in Litigation Forum, New York, New York, September 10, 2014.
  • Taking Stock of Product Liability Food Claims in Canada, Law360, August 7, 2014 (co-authored).
  • Food Product Liability in Canada: Five Drivers of Litigation and Steps to Minimize the Risk, Osler Publication, July 2014.
  • Litigating a Cross-Border Class Action in Canada, ALM Cross-Border Litigation Forum in New York City, September, 2012 (Mary Paterson, Karin Sachar, Deborah Glendinning and Sonia Bjorkquist).

Sonia Bjorkquist, Partner (Toronto)

Osler, Hoskin & Harcourt LLP

T +416 862 5876
F +416 862 6666
E sbjorkquist@osler.com
W www.osler.com

Professional qualifications. Lawyer, Bar Admission Ontario, 1997

Areas of practice. Class actions; food products; international commercial arbitration and ADR; litigation; product liability.

Non-professional qualifications. LLB, Queen's University; BA (Hons), University of Waterloo

Recent transactions

  • Representing a leading multinational pharmaceutical company in class actions and individual actions in several jurisdictions defending allegations of failure to warn.
  • Representing a leading medical device company in class actions and individual actions in several jurisdictions defending product liability claims.
  • Representing a major chartered bank in defending allegations of negligence and misrepresentation in individual and proposed class proceedings in three jurisdictions.
  • Representing the directors and officers of a bankrupt company in a New Brunswick class action involving allegations of breach of fiduciary duty in respect of the administration of company pension plans.

Languages. English, French, Swedish

Professional associations/memberships

  • The Advocates' Society, Board of Directors, Chair of Collegiality, Mentoring and Membership (CMM) Committee.
  • Federation of Defense and Corporate Counsel (FDCC), Elected Member.
  • Defence Research Institute (DRI), Member.
  • Toronto Commercial Arbitration Society (TCAS), Member, Past Member of Executive Committee.
  • ADR Institute of Canada, Past Member of Board of Directors.
  • Canadian Bar Association (Ontario), Member.
  • American Bar Association Member, Litigation Section.
  • International Bar Association, Member.
  • Toronto Lawyers Association, Member.

Publications

  • Taking Stock of Product Liability Food Claims in Canada, Law360, August 7, 2014 (co-authored).
  • Class actions for exaggerated health claims on the rise: report, by David Dias, Legal Feeds (Blog of Canadian Lawyer and Law Time), August 7, 2014.
  • Just Enough: Practical Boundaries of Certification, Colloque National sur les Recours Collectifs, Barreau du Québec, March 2014 (co-authored).
  • Interviewed in The Law Times, "Are Class Actions Going to Trial More Often?" by Julius Melnitzer, September 2, 2013.
  • The Class of 2012: Where Are We Now?, Colloque National sur les Recours Collectifs, Barreau du Québec, March, 2013 (co-authored).
  • Litigating a Cross-Border Class Action in Canada, ALM Cross-Border Litigation Forum, New York, September 12, 2012.
  • Multi-jurisdictional Class Actions: Will the New CBA and ABA Protocols Solve all our Problems? Développements Récents en Recours Collectifs, Barreau du Québec, Vol. 345, March 2012 (co-authored with M. Eizenga and M. Paterson) (Speaker).

Tristram Mallett, Partner (Calgary)

Osler, Hoskin & Harcourt LLP

T +403 260 7041
F +403 260 7024
E tmallett@osler.com
W www.osler.com

Professional qualifications. Lawyer, Bar Admission Ontario, 1989; Alberta, 1997

Areas of practice. Capital markets regulatory enforcement and broker-dealer disputes; class actions; competition/anti-trust litigation; corporate governance and securities litigation; insolvency and restructuring litigation; international commercial arbitration and ADR; pensions and benefits litigation; risk management and crisis response.

Non-professional qualifications. LLB, Queen's University; BA, University of Guelph

Recent transactions

  • Representing BP plc in a proposed securities class action commenced in Alberta arising from the 2010 Deepwater Horizon explosion and subsequent Gulf of Mexico oil spill.
  • Representing Facebook, Inc. in proposed securities class actions in Ontario, Saskatchewan, British Columbia and Québec arising from Facebook's initial public offering (IPO) in the US; and in a proposed privacy class action in British Columbia concerning Facebook's "sponsored stories".
  • Representing Groupon Inc. in a proposed class proceeding in Alberta alleging Groupon's vouchers violate consumer protection legislation.
  • Representing securities dealers in defence of class action and institutional investor claims for misrepresentation in connection with public offerings of and trading in securities.

Languages. English

Professional associations/memberships

  • Alberta and Ontario Law Societies.
  • Canadian Bar Association.

Publications. Tristram has written articles and spoken at continuing legal education conferences on matters such as developments in mergers and acquisitions litigation and class actions.

Gillian S G Scott, Partner (Toronto), Client Relations & Business Development for Litigation

Osler, Hoskin & Harcourt LLP

T +416 862 4872
F +416 862 6666
E gscott@osler.com
W www.osler.com

Professional qualifications. Lawyer, Bar Admission Ontario, 2003

Areas of practice. Client relations; business development; class actions; franchise disputes.

Non-professional qualifications. York University, Osgoode Intensive Trial Advocacy Workshop; JD, University of Toronto; BA, Dalhousie University

Recent transactions

  • Working closely with Osler's Marketing and Client Relations team to promote the litigation department's dispute resolution and risk management services.
  • Representing the department in a number of legal and industry forums, supporting the pursuit of opportunities, and optimizing the Osler experience by acting as a direct liaison with existing and potential clients as well as referral partners.
  • Supporting her national litigation partners and associates in building their profile, identifying and pursuing new business opportunities, nurturing and growing firm client relationships.
  • Maintaining a focused and market-leading commercial litigation and risk management practice representing franchisors in business critical disputes and escalating situations.

Languages. English, French

Professional associations/memberships

  • Marketing Partner Forum, Legal Executive Institute.
  • International Franchise Association, Legal Symposium Task Force Member (2014-2016).
  • American Bar Association.
  • Ontario Bar Association.
  • Advocates' Society.
  • International Franchise Association.

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