Recent Developments in Canadian Class Action Jurisprudence
Author | Robert Stefanelli, Edona Vila, and Glenn Zakaib |
Pages | 23-26 |
American Bar Association | Litigation Section
Class Actions & Derivative Suits
Summer 2024, Vol. 34 No. 1
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Recent Developments in Canadian Class Action
Jurisprudence
By Robert Stefanelli, Edona Vila, and G lenn Zakaib
In the past year, we have seen continued activity of class action filings in Ontario, Quebec,
British Columbia, and Saskatchewan, predominately targeting claims in the automotive,
financial, and healthcare and life sciences sectors. We highlight below some key trends from
Canadian court decisions from spring 2023 to 2024.
Firstly, a brief review of the criteria around certification (authorization, in Quebec). The
certification of a putative class proceeding requires the plaintiff to demonstrate that the plaintiff’s
proceeding meets the criteria for certification on a motion to the court.
While the section numbers and wording vary across Canadian provincial legislation, in general, a
plaintiff must demonstrate the putative class proceeding meets the following five-part test before
the court will certify the claim as a class proceeding:
1. Cause of action—The pleading must disclose a valid cause of action.
2. Class definition—There must be an identifiable class of two or more persons with a cause
of action against the defendant or defendants.
3. Commonality—The claims of class members must raise common issues.
4. Preferable procedure—A class proceeding must be preferable for the resolution of the
common issues as considered through the lens of access to justice, judicial economy, and
behavior modification.
5. Representative plaintiff—There must be a representative plaintiff who would fairly
represent the class per a workable litigation plan and without a conflict of interest.
In the past year, we have seen various trends emerge in the treatment of proposed class
proceedings during motions for certification—particularly in the treatment of the cause of action
and the preferable procedure components of the certification test.
Trends in Assessing the Cause of Action Criterion
Canadian courts generally view the cause of action criterion as being a low threshold for a
plaintiff to meet, and a claim will be deemed satisfactory unless it has a radical defect or it is
plain and obvious that the claim cannot succeed (see 176560 Ontario Ltd. v. Great Atl. & Pac.
Co. of Can. Ltd., 2002 CanLII 6199, para. 19 (Can. Ont. Super. Ct.)).
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