An analysis of class action certifications – Ontario, 2019

Class actions are procedural vehicles driven by aggrieved plaintiffs in their quest to find a common legal panacea to their collective tort. However, before such panacea can be found, there are a series of hoops that must be jumped through. A class action is initiated just like any regular action i.e. by issuing a statement of claim followed by a statement of defence. When a party brings a motion to certify the action as a class action, a court conducts a pre-certification case management conference and discovery followed by the certification hearing where the class is defined and a litigation plan is set in motion. 

In Ontario, Canada, Section 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“the Act”) states that a Motion for Certification has to be filed for an action to be certified as a class action. The requirements for obtaining a successful order on a Motion for Certification include a proper cause of action, demonstrating that a class proceeding would be the preferable procedure for the resolution of the common issues of an identifiable class of two or more persons, and the appointment of a suitable class representative. Procedurally, after a party delivers a certification record (which includes affidavits from the representative plaintiffs and the rest of the class and applicable expert witnesses) the defending party delivers a similar certification record as a response. These pleadings are then followed by out of court cross-examinations on the affidavits. After perusing the transcripts of the cross-examinations and written arguments, the presiding judge hears a final oral argument between the parties before adjudicating on the certification motion. Appointing a worthy class representative is crucial, as they will be at the helm of the class proceeding and, as a result, are responsible for sound decision-making in seeking collective relief on behalf of the entire class. Below, I’ll be taking a look at the success and failure rates of certification motions in the province of Ontario in 2019.  

According to the Court Analytics database, a total of 19 certification motions were filed as part of 19 published decisions in the Ontario Superior Court of Justice in 2019. Of these, 17 motions successfully passed the certification stage and got approved as a class proceeding, while the 2 remaining motions were refused certification, putting the success rate of certification motions in that year at 89.47% and the failure rate at 10.53%. 

Figure 1. Outcome Breakdown for Class Action Certification Motions in the Ontario Superior Court of Justice, 2019 1

These 19 motions dealt with a wide variety of issues, from multiple practice areas including Privacy, Product Liability, Price Fixing & other Anti-competitive practices, Medical Malpractice, and more. The pie chart below provides a breakdown of the motions based on their main issues. 

Figure 2. A pie chart showing 2019 class action certification motions in the Ontario Superior Court of Justice based on their main issue.

The average turnaround time for the court hearing a certification motion for the first time until publishing its final judgment was 36 days, while the median turnaround time was 3 days. The shortest decision turnaround time in this period was 0 days, i.e. the judgment was published on the same day as the hearing. The longest was 311 days. The decision-makers who adjudicated on the certification motions were Justice Edward M. Morgan (7 decisions), Justice Paul Marvin Perell (7 decisions), Justice Edward P. Belobaba (2 decisions), Justice Benjamin T. Glustein (1 decision) and Justice Russell Mark Raikes (2 decisions). 

In Ontario and the rest of common law Canada, a certification is a procedural matter aimed at screening inappropriate cases rather than adjudicating the merits of the case. The most common reason for successfully pleading a certification order was the representative plaintiff’s ability to demonstrate that it is plain and obvious that a claim exists and there is ample supporting evidence. Considering the whopping 89.47% success rate in obtaining a successful certification order from the court, it is apparent that passing the certification test is currently relatively simple for plaintiffs in Ontario. The purpose of the certification requirement is to ensure that the case is appropriate to proceed as a class action. Since class actions can materially affect the substantive rights of an entire class of individuals, they are rightly subject to greater procedural protections and a more stringent oversight than regular cases. Passing the certification test is pivotal since a failure to obtain a certification order essentially terminates the proceeding. 

In December, Ontario introduced Bill 161, which proposes certain changes to the Act seeking to reshape the certification test. If passed, the new bill would require that a class action plaintiff demonstrate that a class action is a  “superior” process to resolve the collective claims and that the same facts or legal issues “predominate” in every person’s case. This would set a much higher bar than the current certification test. Cases dealing with negligence claims in product liability, medical liability, or personal injury cases can range across a wide spectrum of individual circumstances. If amended, the new certification test would require that “…the questions of fact or law common to the class members predominate over any questions affecting only individual class members.”

Some legal academics, practitioners and organizations say that the new rules will likely make it more difficult for proposed class actions to make it past the certification stage and restrict access to justice for aggrieved plaintiffs. Independent law-reform agencies like the Law Commission of Ontario (LCO) believe that the government is trying to limit its liability and restrict access to justice. Such sentiments, however, are not shared by defence lawyers, who say that the new bill would make the province more business-friendly and nip unmeritorious claims in the bud i.e. certification stage. The process would thus be closer to American-style certification tests, which go into the merits of the case at the certification stage. Bill 161 has currently passed its second reading 2; however, its future material impact on class action certifications remains to be seen. 

  1. This report is generated using Court Analytics’ ‘Hearing Analytics Report’ feature. Parameters selected to run this report – Court: Ontario Superior Court of Justice; Practice Area: Class Actions, Hearing type: Certification of action as a class proceeding.
  2. Find the full text of this bill here.

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