- Whether and how to facilitate national classes (see the recent Excalibur, Prince and Endean decisions, among others)
- Improving procedural efficiency, including in the test for certification and evidentiary requirements, appeal routes, the order in which motions should be heard, and carriage motions
- Whether Ontario should become a “no-costs” class action jurisdiction rather than a “loser-pays” jurisdiction (see our earlier post)
- The policy and jurisprudence surrounding cy près, reversion and forfeiture in settlements
- The rate of take-up by class members, and whether and how notices to the class can improve take-up rates
- The Class Proceedings Fund, its policy and funding framework and its sustainability (see our earlier post)
- Whether and when third party funding creates a risk of conflict of interest
- Waiver of tort, what it is and whether and how it should be used
- Securities class actions and how common law and statutory causes of action interact
Filling The Information Gap
One of the big challenges in evaluating the effectiveness of class action procedures in Ontario is the lack of accurate data about class actions. Over the last year, the Advisory Group has made progress in collecting data to statistically evaluate class action activities. For example:
- The Canadian Forum on Civil Justice provided funding for students who compiled a database containing information about the nearly 600 cases commenced since 1993. We understand this database includes information about the number and outcome of motions, trials and appeals in each case as well as the length of time to complete each process.
- The LCO called for Research Proposals to provide empirical evidence of take-up rates in class actions in Ontario, including identification and analysis of key factors that influence such rates, from 2003 to 2013. The final research paper is due on April 15, 2015.
Given the Supreme Court of Canada’s clear direction that parties should focus on resolving the substance of disputes efficiently and effectively (see our post desribing the impact of Hyrniak andSattva for example), the Advisory Group’s report – and the data it contains – can’t come too soon.