Law Commission of Ontario reacts to changes to Class Proceedings Act proposed in bill 161

The Law Commission of Ontario has expressed its disapproval of the proposed changes to the legislation governing class proceedings in the province.

In a letter signed by Andrew Pinto, chairman of the LCO’s board of governors, and addressed to Doug Downey, attorney general of Ontario, the LCO declined to show its support of the proposed amendments to the Class Proceedings Act, 1992, as currently drafted under Schedule 4 of bill 161, the Smarter and Stronger Justice Act, 2019, which had its first reading on Dec. 9, 2019.

On the one hand, the LCO appreciated how the drafters had substantially adopted several recommendations contained in its July 2019 report titled “Class Actions: Objectives, Experiences and Reforms.” The changes the LCO perceived in a positive light pertain to provisions concerning the timing of certification motions and administrative dismissal, carriage, multi-jurisdictional class actions, settlement approvals, settlement distributions, fee approval, third party funding and appeals.

However, on the whole, the LCO said that it could not support the bill as it was currently drafted, on account of the far-reaching effects of certain amendments.

Specifically, the LCO found that the bill imposed “mandatory and conjunctive ‘superiority’ and ‘predominance’ tests” at the certification stage, requirements which the LCO has rejected. “These provisions fundamentally restructure class action law and policy in Ontario by shifting the CPA’s longstanding certification test strongly in favour of defendants,” the LCO said.

According to the LCO, the adoption of such requirements could result in undesirable effects such as increased costs, longer delays and legal uncertainty. The LCO also said that the proposed changes could negatively impact access to justice and the administration of justice in relation to class proceedings in the province.

The LCO explained that the changes introduced in bill 161 would “effectively restrict class actions and access to justice in a broad range of important cases, including consumer matters, product and medical liability cases, and any potential class actions where there may be a combination of common and individual issues.”

Moreover, under these amendments, Ontarians may end up having fewer legal rights and remedies, as well as less access to compensation, compared with other Canadians. Ontarians may also face significant obstacles to filing class actions against “their provincial government, government agencies, corporations and other institutions.”

The LCO also said that the bill appears to adhere to “restrictive American legislative provisions and priorities that are inconsistent with decades of Canadian law.” The LCO claims that this approach is contrary to repeated rulings of the Supreme Court of Canada, calling for the generous construction of the Class Proceedings Act, in order to give full effect to its advantages.

The LCO closed the letter by stating that it would be willing to discuss these issues with the Ministry of the Attorney General.

In the same news release publicly declaring its response to the proposed amendments to the legislation governing class actions, the LCO also comments on the proposed changes to the Estates Act.