Oct 22, 2020
Osler partner Craig Lockwood tells Canadian Lawyer that while many agree that changes to Ontario’s Class Proceedings Act (the Act) raise “the bar for certification,” the amendments “may not be as big as people think.” In her article, author Elizabeth Raymer discusses changes to the Act, which came into effect on October 1 as part of Ontario’s Bill 161. The article explains how the amendments, among other things, “created a predominance requirement to certify a class” and “raised the bar on certification.” Craig, a partner in Osler’s Litigation Group who specializes in class action defence, explains the implications.
”Everybody has a view on [the new legislation’s] effects,” Craig tells Canadian Lawyer, but they “agree it raises the bar for certification.”
Craig also discusses the predominance requirement to certify a class action. The amendments to the Act require that “common issues predominate over individual ones,” which has led to speculation regarding the bar being raised for certification and that plaintiffs may not want to bring actions in Ontario as a result.
“I don’t know that that’s necessarily the case,” Craig says, “but at this stage, very rarely do you see a class action in Canada that’s not national,” which means that counsel are co-ordinating across provinces to start actions.
“So, I feel the amendments to the Ontario Act may not be as big as people think.”
Craig also says that “any class action filed before October 1 was done so under the old regime, and in the runup, we did see a number of class actions newly filed in Ontario.”
For more information, read author Elizabeth Raymer’s article “Ontario’s amended class action legislation raises the bar on certification” on October 22, 2020 in Canadian Lawyer.