On July 17, 2019, the Law Commission of Ontario (“LCO”) released its final report, Class Actions: Objectives, Experience and Reforms. The LCO report makes 47 recommendations to reform Ontario’s Class Proceeding Act (“CPA”) and related policies. One major theme of the report is that the speed of class actions should be improved significantly.
Attention to the speed of class actions should come as a relief to class members who are frequently left waiting years before the motion for certification is heard in a proposed class proceeding. This is often due to defence scheduling issues and other delay tactics. Delays in the certification process are particularly frustrating for class members who have suffered physical injuries or financial losses as a result of a defendants’ negligence. For many individuals, class actions are their only option for gaining access to justice and seeking compensation due to the high costs associated with advancing individual actions.
The LCO report makes three recommendations to motivate parties to advance their actions in a timely manner:
- Amending s. 2(3) of the CPA to establish a one-year deadline within which the certification motion must be scheduled and plaintiffs’ motion material filed;
- Introducing an automatic dismissal and costs provision for cases that are not advanced by plaintiff firms in a timely or appropriate manner; and
- Improving case management of class actions, including:
- a statutory provision requiring a case management conference early in the proceeding;
- amending the CPA to give courts more expansive authority to manage cases; and,
- adoption of a comprehensive Practice Direction specifically addressing case management of class action proceedings.
While the CPA currently contains the “ninety day rule” – where leave to bring a certification motion must be brought within ninety days after the later of (i) the date on which the last statement of defence, notice of intent to defend or notice of appearance is delivered, and (ii) the date on which the time prescribed by the rules of court for delivery of the last statement of defence, notice of intent to defend or a notice of appearance expires without its being delivered – this rule is rarely enforced. The LCO report notes that “the ninety day deadline has been consistently (and reasonably) ignored because it is unrealistic in contemporary class action litigation.” The LCO proposes amending s. 2(3) of the CPA to replace the ninety day rule with a deadline of one year within which the certification motion is to be scheduled and the plaintiffs’ motion material to be filed.
At first blush, this recommendation may seem at odds with improving the speed of class actions. However, a more realistic deadline coupled with stricter judicial enforcement will likely reduce the length of the certification process, as parties will be held accountable to justify their delays. At Siskinds, we believe that a fixed, but reasonable, deadline for the hearing of the certification motion by the case management judge will help to impose discipline on the process. The LCO report also predicts that stricter timelines “may lead to counsel producing leaner motion materials, greater cooperation between counsel to meet deadlines, and more efficient hearings.” Overall, imposing a longer, but more realistic deadline for filing certification materials will likely result in more expedited certification hearings, which is good news for class members.