As Canada’s class actions regime has evolved, observers have commented on the pendulum of jurisprudence favoring plaintiffs, then defendants, then back again. While it may be easy to say that recent years have not been as good for plaintiffs and that the pendulum has swung over to the defense side, it’s also a simplistic approach. The truth is that the jurisprudence is increasingly refining the parameters, with less need to define them. Ultimately, what seems to be shaping up is a healthy balance that augurs well for resolution of the issues that still need clarification.
Class actions in Canada are provincially regulated. Québec is a civil law jurisdiction while the other provinces are based in common law. Torys LLP describes the certification process in Ontario and other common law jurisdictions thusly:
“It has become increasingly difficult to successfully oppose class certification in Ontario or other common-law provinces. Certification does not determine the merits of the case. Rather, it is a procedural matter aimed at screening cases that are not appropriate to be dealt with as a class proceeding. Judges hearing certification motions rarely consider the merits of the lawsuit. They focus on whether the representative plaintiff and the proposed class action meet the elements of the prescribed test: whether the claim: (i) discloses a cause of action; (ii) contains an identifiable class; (iii) proposes issues common to the class; (iv) is the preferable procedure for resolving the complaint; and (v) has an appropriate representative plaintiff.
“The representative plaintiff must show it is not plain and obvious that no claim exists and there is ‘some basis in fact’ to meet the remaining elements of the test. This is usually done through affidavit evidence. However, where there is a conflict in either the factual or expert evidence, the court hearing the certification motion does not resolve that conflict; that is a task for the judge presiding over the trial.
“As a result of this approach, the test for granting certification is a relatively easy one for plaintiffs to meet. Canadian courts, including the Supreme Court of Canada, have taken a very permissive view of class actions and view them as an important component of enabling the public to obtain access to justice economically. It has therefore become increasingly difficult to successfully oppose class certification in Ontario (or other common-law provinces).”
In Alberta, in 2019, the Alberta Court of Queen’s Bench, according to McCarthy Tétrault LLP, “struck a proposed class proceeding as an abuse of process, refused to allow the proposed representative plaintiff (a non-lawyer) to represent the proposed class, declared the plaintiff to be a vexatious litigant, and restricted his future access to the Court. In Biley v Sherwood Ford Limited, 2019 ABQB 95, the Court considered three separate actions by a self-represented plaintiff, including a C$11 million proposed class action.”
In Ontario, as described by McCarthy Tétrault LLP: “In Chu v. Parwell Investments Inc. et al, 2019 ONSC 700, released on February 15, 2019, [Justice] Belobaba places front and center the growing importance of class counsel fees in carriage motions. The cases before the court on that motion were effectively equal on most factors, such as experience and resources of counsel, the proposed plaintiffs and defendants, the framing of the causes of action, and the state of preparation. The fee arrangement emerged as the one and only determinative factor in awarding carriage. The outcome here perhaps points to where the law of carriage may be headed.”
McCarthy Tétrault LLP writes that climate change class actions that have come to Canadian jurisdictions largely follow American patterns:
“First, in November 2018, ENvironnement JEUnesse (“ENJEU”), a non-profit organization, filed a proposed class action against the federal government in Québec. The claim is brought on behalf of all Québec residents aged 35 and under and alleges that the federal government set inadequate targets for reducing greenhouse gas emissions and failed to meet the targets it did set. ENJEU argues that the federal government thereby breached ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, ss. 1, 10, and 46.1 of Québec’s Charter of Human Rights and Freedoms, and various obligations under the Canadian Environmental Protection Act. ENJEU seeks various declarations and corrective action.
“ENJEU’s claim follows similar lawsuits in the United States. For example, in Juliana v. United States, several youth plaintiffs and a non-profit organization allege that the US federal government caused or contributed to global warming by enabling the exploitation of fossil fuels and thereby breached the plaintiffs’ constitutional rights. Juliana was filed in 2015; a trial has been delayed by interlocutory appeals.
“Second, in January 2019, the City of Victoria (BC) endorsed a class action on behalf of local governments in BC to recover the costs they incur as a result of climate change from ‘major fossil fuels corporations’. Victoria plans to raise the proposed class action—which has yet to be filed or outlined in detail—with other BC municipalities later this year. Victoria also plans to ask the provincial government to ‘consider legislation to support local governments’ in recovering the costs of climate change. The legal framework of this proposed claim remains unknown.”