Amended law on class actions adds predominance and superiority to certification requirements

Ontario’s Bill 161, the Smarter and Stronger Justice Act, 2020, which received royal assent on July 8, has introduced numerous changes to the Class Proceedings Act, 1992, S.O. 1992, c. 6.

A requirement for certification for a class proceeding is that it be the preferable procedure for the resolution of the common issues. The amendment clarifies that a class proceeding is preferable if it is superior to all reasonably available means, and if the common factual and legal issues of the class are predominant when compared with those affecting individual class members.

“By adding these mandatory requirements [of ‘predominance’ and ‘superiority’], the amended Act may restrict the public’s ability to pursue class actions regarding several important subjects, including medical liability and systemic negligence cases, which can involve some individual issues,” Siskinds LLP wrote in a blog about the change.

Another amendment involves the treatment of a motion which may wholly or partially dispose of the proceeding or which may narrow the issues or evidence. The court will either resolve such motion before hearing the certification motion or will hear both motions at the same time.

Borden Ladner Gervais LLP noted that the change 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 amended legislation also now asks the court to take into account existing and proposed multijurisdictional class proceedings initiated outside Ontario and involving the same or similar subject matter and class members. In such a situation, the court should decide which of the claims or issues should be dealt with in the other proceeding instead.

“These changes will harmonize Ontario’s class actions regime with those of some other Canadian jurisdictions, such as Alberta, British Columbia and Saskatchewan, in which similar provisions for the management of multijurisdictional proceedings are already in place,” Fasken Martineau DuMoulin LLP said in its bulletin.

Norton Rose Fulbright Canada LLP called attention to the more streamlined process for appealing from certification orders under the amended law, which “eliminates the asymmetrical appeal process in which plaintiffs currently have an automatic right of appeal from orders denying certification to the Ontario Divisional Court whereas defendants are required to seek leave to appeal from orders granting certification.”

Other amendments introduced by Bill 161 concern settlements, carriage motions, material amendments on appeal, dismissals for delay, third-party funding agreements, agreements on fees and disbursements, and proceedings involving subrogated claims. Further changes add requirements to register proceedings commenced under the legislation, and to file a report on the distribution of an award.