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The first stage of a class proceeding is the certification stage. Certification is a procedural step, the purpose of which is to screen out cases that are not appropriate to be dealt with on a class-wide basis. In Ontario, an action is certified if it passes the five-step test outlined in section 5 of the Class Proceedings Act.

The fourth step of this test requires that a class action be the “preferable procedure” for resolving the complaint. This means that a class action must:

  1. Be a fair, efficient and manageable method of advancing the claim and
  2. Be preferable to any other available method of resolution.

Amendments to the preferable procedure requirement

In 2020, amendments were made to the preferable procedure requirement, which ultimately raised the threshold for satisfying it. Now, a class action is only preferable if:

  1. It is superior to all other means of litigation or resolution and
  2. The common issues affecting all class members predominate over any questions affecting only some class members.

These changes are particularly relevant to institutional abuse litigation, where each class member may have their own individual experiences and injuries resulting from their time at the defendant institution.

Banman v Ontario 2023 ONSC 6187

Recently, in Banman v Ontario, Justice Perell applied the new preferability test to an institutional abuse action started on behalf of previous patients of the St. Thomas Psychiatric Hospital, who alleged they received cruel and unusual treatment, torturous punishment, and illegal seclusion and restraints. Despite the stricter preferable procedure test, the action was certified.

One highlight from the court’s analysis was the emphasis placed on access to justice, which it identified as the primary purpose of class action proceedings, and as such, the prime lens for examining the preferable procedure requirement. The court noted that, as individuals, many of the class members had nominal claims that they likely would not be able to pursue through individual litigation. The fact that a class proceeding would be their only way to achieve any access to justice was sufficient for the common issues to predominate over the individual issues.

Another highlight of the case was the court’s reasoning for determining that a class action would be the superior method of resolving the claims, in comparison to, for example, individual trials. The court accepted class counsel’s argument that alternatives to a class proceeding would be uneconomic, lengthy, and expensive. Justice Perell also noted the benefit of a class proceeding to the defendants, stating that it would economize the expense of their defence, and would discharge them from liability for all class members if the action were to settle.

Conclusion

The Banman decision confirms that the test for preferability is now stricter, and a more significant barrier for plaintiffs to overcome. However, it also confirms the importance of approaching the test through the three goals of class proceedings; access to justice, judicial economy, and behaviour modification. Specifically, access to justice will continue to be an important consideration where alternative methods of litigation may bar individuals from bringing their claims.

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