On July 17, 2019, the Law Commission of Ontario (LCO) released its long-awaited report, titled Class Actions: Objectives, Experiences and Reforms (Report).
The LCO’s class action project, involving a comprehensive review of the Ontario Class Proceedings Act, 1992 (CPA), was initiated in November 2013 with a scoping document setting out a framework for the review and preliminary list of issues to be addressed.
The results of the LCO’s consideration of input from a cross-section of stakeholders are reflected in 47 recommendations covering a range of topics: managing class actions, carriage, multijurisdictional actions, certification, settlement approvals, settlement distributions, fee approval, costs, behaviour modification and appeals.
Some of the noteworthy recommendations made include:
Recommendation #1: That the CPA be amended to establish a one-year deadline within which the certification motion schedule must be set, and the plaintiffs’ motion record filed unless the court orders otherwise.
Recommendation #2: That the CPA be amended to provide for administrative dismissal if the plaintiff does not file its certification material before the proposed one-year deadline or any case management order setting an alternate deadline for filing those materials.
Recommendation #12: That the CPA be amended to add provisions consistent with legislation in Alberta, British Columbia and Saskatchewan designed to promote multijurisdictional coordination.
Recommendation #16: That the courts interpret the preferable procedure requirement of the certification test more rigorously.
Recommendation #17: That the courts support/endorse pre-certification summary judgment motions or motions to strike if such a motion will dispose of the action, or narrow issues to be determined or evidence to be filed at certification.
Recommendation #38: That the CPA be amended to give the court the discretion to adjust class counsel fees as a percentage of the total recovery to ensure a reasonable fee bears an appropriate relationship to the results achieved.
Recommendation #40: That the CPA be amended to provide for no-costs for certification and ancillary motions. The “two-way” costs would be retained for all other aspects of the action including summary judgment motions, disputes about jurisdiction, de-certification motions and trial.
Recommendation #41: That the CPA be amended to permit third-party/private funding of class actions if certain listed requirements are met, including the ability for defendants to recover costs awards directly from the funder.
Recommendation #47: That the CPA be amended to provide symmetrical appeal rights for plaintiffs and defendants with both parties having the right to appeal to the Ontario Court of Appeal from certification orders.
Several specific proposals for further reform were considered and rejected throughout the Report, including proposed reforms to the statutory and evidential tests on certification.