The Ontario Government has announced significant amendments to the Ontario Class Proceedings Act as part of its omnibus Bill 161, the Smarter and Stronger Justice Act, 2019. Proposed changes include a more rigorous certification test, improved co-ordination of multi-jurisdictional class actions and other significant procedural reforms. The proposed amendments are expected to pass into law in 2020.
The Bill 161 amendments to Ontario’s Class Proceedings Act, 1992 (CPA) reflect recommendations that the Law Commission of Ontario (LCO) set out in its July 2019 report, “Class Actions: Objectives, Experiences and Reforms”, which followed a comprehensive two year study of class actions in Ontario.
The key proposed amendments include the introduction of:
- A mandatory dismissal for delay provision for dormant proceedings;
- Provisions for the coordination of multi-jurisdictional class actions;
- Changes to the “preferable procedure” prong of the certification test; and
- Various procedural changes to appeal routes, carriage motions and the approval of settlements
While the CPA has generated its share of case law since coming into force in 1993, the Bill 161 amendments represent the first major changes to the legislation since it came into force. The new provisions will apply only to proceedings filed after the amendments come into force, with one exception: the new one year limitation clock on dismissal for delay (see below) will run for existing proceedings, but only from the day that the amendments come into force.
Key provisions are discussed below.
Dismissal for Delay
Proceedings that are commenced and then remain dormant – often for years on end – have been a longstanding issue for the Ontario class actions bar. One of the most significant Bill 161 amendments addresses this with a mandatory dismissal for delay provision for dormant proceedings.
Under the new provision, the court is required, on motion, to dismiss a class proceeding unless at least one of the following steps has been taken within one year of its commencement:
- The filing of a final and complete certification motion record by the representative plaintiff;
- The parties have agreed in writing to a timetable for service of the representative plaintiff’s certification motion record, or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;
- There is an order of the court that the proceeding not be dismissed and a timetable for service of the representative plaintiff’s certification motion record, or for the completion of one or more other steps required to advance the proceeding; or
- Any other steps, occurrences or circumstances that may be specified by regulation.
Bill 161 introduces provisions for the coordination of multi-jurisdictional class proceedings, which are defined as proceedings that are brought on behalf of residents of two or more provinces or territories involving the same or similar subject matter.
Where a proposed class proceeding brought on behalf of a multi-jurisdictional class is commenced outside Ontario involving the same or similar subject matter and some (or all) of the same class members as an Ontario proceeding, Bill 161 requires the court to determine whether it would be preferable for some (or all) of the claims of the Ontario class members in the Ontario proceeding to be resolved in the other jurisdiction. The proposed amendments include an extensive list of factors to be considered by the court in making this determination.
Unlike other Canadian provinces whose class proceedings legislation contains similar provisions to address multi-jurisdictional class actions, Bill 161 provides that the parties may seek a stay of the Ontario proceeding before the certification motion is heard. A court may also refuse to certify a proposed multi-jurisdictional class proceeding if it determines it is preferable for it to proceed in another jurisdiction.
These reforms follow certain changes to judicial practices set out in the Ontario Superior Court of Justice’s Consolidated Provincial Practice Direction, which was amended to adopt the Canadian Bar Association’s Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions and the Provision of Class Action Notice, as revised in 2018.
Certification Test and “Preferable Procedure”
Another key proposed amendment would introduce the following new subsection 5(1.1):
5(1.1) A class proceeding is the preferable procedure for the resolution of common issues under clause (1)(d) only if, at a minimum,
(a) it is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and
(b) the questions of fact or law common to the class members predominate over any questions affecting only individual class members.
This amendment adds elements to the existing “preferable procedure” prong of the certification test that make it more onerous for a plaintiff. Not only does the court need to be satisfied that a class action is the preferable procedure for resolving the common issues, but also that it is the “superior method” for resolving class members’ entitlement to relief or addressing the impugned conduct of the defendant. The addition of a predominance requirement in subsection 5(1.1)(b) is also significant.
These changes are similar to the superiority and predominance requirements generally applied in the United States and are designed to introduce a more rigorous certification test in Ontario.
Bill 161 also introduces several notable procedural changes to the CPA, including:
- Appeals to the Court of Appeal, allowing either party to appeal directly to the Court of Appeal from an order certifying, refusing to certify, or decertifying a proceeding as a class proceeding. This reform eliminates the asymmetrical status quo in which plaintiffs have an automatic right of appeal while defendants are required to seek leave, as well as the intermediary jurisdiction of the Divisional Court for such appeals.
- Carriage motions, where similar claims are filed by multiple counsel within the province, the motion to determine which counsel has “carriage” of the case must be brought within 60 days of the commencement of the first action, with the decision of the court being final and not subject to appeal. Similar proposed class proceedings commenced in Ontario more than 60 days after the first action has been commenced will be barred. Class counsel may not seek to recover the costs of the carriage motion from either the class or the defendants.
- Third-party funding arrangements, which are not currently addressed in the CPA, will be allowed. Such arrangements will be subject to court approval (and unenforceable in the absence of such approval). Motions for approval, on notice to defendants, must be made as soon as practicably possible after the agreement is entered into and a copy of the agreement must be provided to the defendants. Information that may be reasonably considered to confer a tactical advantage on the defendant may be redacted, although the motion judge must receive a complete and unredacted third-party agreement, which shall not form part of the court file.
- Settlement approval, which requires that the party seeking approval make full disclosure of all material facts and file an affidavit detailing the method used for valuing the settlement, the plan for allocating and distributing settlement funds and evidence as to how the settlement is fair and in the best interests of the class (among other things).
- Early resolution, whereby the court is mandated to hear dispositive motions and motions that may narrow the issues to be determined in advance of the motion for certification (unless the court orders that the motion be heard in conjunction with the certification motion).
- Costs of certification notices will be the responsibility of the plaintiff, which may seek to recover such costs from the defendants only at the conclusion of the proceeding, if the plaintiffs are ultimately successful.
Bill 161 passed First Reading on December 9, 2019 and will proceed through the remainder of the legislative process before it receives Royal Assent and becomes law. As government legislation, its passage is highly probable, although there is the possibility of amendments before final passage into law.