The class actions certification pendulum is swinging back, say lawyers – Lexpert

Emily MacKinnon

Nov 23, 2022

While Canadian courts once showed a “great willingness to certify” class actions, with the certification stage functioning like a “procedural bump in the road,” the pendulum is swinging back in the other direction, Osler Litigation partner Emily MacKinnon tells Lexpert.

“We’re seeing courts apply a slightly stricter standard and really requiring that there be some meat to the action before they certify.”

Another factor behind this shift are the amendments Ontario made to the Class Proceedings Act in 2020.

“Practically speaking, one of the big changes is that it permitted defendants to bring motions before certification to get rid of the case at an early stage,” Emily explains. “That’s a really big deal because until the action is certified, the plaintiff’s lawyers are bearing a lot of risk. So, if a defendant can get rid of the case at an early stage before it’s certified, then there’s really no possibility for the plaintiff to be able to get it settled. They lose a lot of leverage.”

Since those amendments took effect, Emily notes that many Ontario class actions moved to British Columbia, a province sometimes seen as more plaintiff-friendly. But B.C. judges have followed the same trend as in other jurisdictions, requiring “some meat in the action” in order to certify.

In the 2021 case of British Columbia v. The Jean Coutu Group (PJC) Inc., the B.C. Court of Appeal found that certification does not have to be the first procedural matter heard and determined in a class action. This ruling has “opened the door wider” on defendants bringing their own motion first, Emily says.

“It’s a case-by-case analysis,” she says. “But I have certainly already noticed that it changes the dynamic, and it certainly changes a judge’s willingness to look at a defendant’s request to bring a motion before certification.”

You can read the full article, “The class actions certification pendulum is swinging back, say lawyers,” on the Lexpert website.