Goodbye, Backlogs; Hello, Agency Class Actions

Written by on September 11, 2018.

Government agencies across Canada are struggling to process a growing backlog of claims.   Few agencies are immune.  In April 2018, an independent review concluded that Canada’s refugee determination system is dealing with a surge in claims that it is ill-equipped to manage.  In December 2017, the media reported on the skyrocketing volume of veterans disability claims waiting in queue.

The usual fixes are proposed:  More time, more money, more staffing.  But a promising alternative may be to copy the tools used by courts to adjudicate large numbers of claims.  This approach has been termed “aggregation” in an article by the Yale Law Journal.  Aggregation allows adjudicators to decide multiple claims in a single proceeding.

One type of aggregation is already familiar to many of us – the class action, a tool used by many private litigators (including our firm) since the enactment of the Class Proceedings Act a quarter-century ago.  Class actions allow courts to resolve hundreds, thousands, or even millions of claims in a single proceeding.  The premise of the class action is that like should be treated alike, to allow for the fair, efficient and consistent treatment of similar cases.

If not a magic elixir, aggregation could be strong medicine for overburdened agencies looking to manage their backlogs.  Just as grouping similar claims together in the courtroom has helped increase access to justice for many litigants, consolidating similar cases could work well in the tribunal setting.

Aggregation could be initiated by either side – the agency or the claimants. Perhaps a group of veterans with symptoms stemming from the same underlying ailment could agree to assess their disability claims together.  They would have common counsel and similar facts, and likely a faster hearing.  Or perhaps the agency itself will initiate the aggregation in processing refugee claims, and decide in one setting whether the danger posed by a government’s hostility toward a minority group could be applied to all members of that group.

Some agencies already have the power to aggregate.  Section 9.1 of Ontario’s Statutory Powers Procedure Act (the default set of procedural rules for most Ontario agencies) permits tribunals to “combine” proceedings involving “the same or similar questions of fact, law or policy” with the consent of the parties.   More broadly, under section 25, a tribunal has the power to “determine its own procedures and practices”.

There may be constitutional limits on how much aggregation an agency can permit.  The foundational case Baker v. Canada created a test for evaluating the procedural fairness of an agency’s practices.  But consolidating proceedings is not per se unlawful (in Ontario, at least).  In McNaught v. TTC, the Ontario Court of Appeal held that procedural fairness was not infringed by the Ontario Labour Relations Board consolidating two proceedings into one hearing.

Our southern neighbour has had some successes applying aggregation, and the Yale Law Journal article describes in detail how the Office of Medicare Hearings and Appeals resolved thousands of medical claims at a time in a pilot project testing aggregation.  The aggregation involved picking a small sample of the claims, adjudicating the sample individually, and then extrapolating the results to other common claims.   Thus, many claims were decided together.  The initial results were that the sampling aggregation could resolve up to six hundred claims at a time, with huge time and cost savings.

Of course, there are dangers to aggregation.  Mega-cases can become unmanageable due to complex issues and limited staffing.  In some areas – refugee hearings in particular – lumping individuals together into an abstract group can undermine public support (i.e., legitimacy of the process).  Aggregation may also compound errors if the consolidated case is wrongly decided.  But these risks can be effectively managed by cautious use of aggregation and by requiring parties to consent to the consolidation.  Opt-in pilot programs (like the Medicare experience) are one workaround.

We’ve witnessed the power of consolidation in the class action setting.  It could be equally be harnessed by agencies and tribunals to manage their ballooning caseloads.

Posted in Class Actions