By Lovejot Bhullar
Bill 161, the omnibus bill proposed by the Ontario Government which makes significant amendments to the Class Proceedings Act (CPA), is now law. As discussed in two previous blog posts, changes to the certification test pose significant challenges with respect to access to justice for Ontarians seeking redress through class actions: the new predominance and superiority tests introduced in the legislation will make it more difficult to certify proposed class actions, especially in cases involving personal injury and product liability.
Other aspects of this Bill, however, align with the recommendations provided by the Law Commission of Ontario’s (LCO) 2019 Class Actions Final Report and potentially address two of class members’ biggest concerns: delay and a lack of transparency.
In this month’s blog, we discuss four of the amendments recommended by the LCO and made into law by Bill 161, that will be important to class members: certification appeals; provisions regarding delay; multi-jurisdictional proceedings and carriage motions; and settlement distribution notice, administration and reporting.
Under the previous class proceedings regime, if a class action was not certified then the initial appeal could only be made to the Divisional Court of the Superior Court of Justice rather than the Court of Appeal. The primary rationale for this process was based on the idea that Superior Court judges would ideally have subject-matter expertise that would allow them to more effectively review certification decisions, while simultaneously reducing the workload for the Court of Appeal. As the LCO Report found, however, this regime did not accomplish these goals and instead created delays. Moreover, asymmetrical appeal rights, under which defendants were required to get leave (i.e. permission) to appeal, were found to be overly complicated.
Under the amended CPA, new provisions give both plaintiffs and defendants the right to appeal certification decisions directly to the Court of Appeal. The amendments both simplify the appeals process and rectify the fact that Ontario was previously the only province with divided appellate jurisdiction in class action cases. Class members can expect less delay in the appeals process, but perhaps more frequent appeals of certification decisions to the Court of Appeal.
A core theme of the LCO Report centered on the idea that class actions in Ontario often require an extraordinarily long period of time to be resolved, a concern expressed by both plaintiffs’ and defendants’ counsel. Under the old statute, no formal procedures were available to deal with issues of delay and instead depended on judicial management. According to the LCO, clear rules and benchmarks were needed to mitigate the harm of delay on class members, who may be prejudiced by lost evidence or dissipation of the class, and on defendants, who can suffer significant financial and reputational harm.
To remedy some of the issues regarding delay, Bill 161 adopted an LCO recommendation by introducing section 29.1, which provides for mandatory dismissals in the case of delay. Under this new provision, if the plaintiff has not filed a complete motion record within one year of the commencement of the action, and unless ordered otherwise by the court, the court must dismiss the action.
This new deadline benefits both class members and defendants, as now parties are encouraged to proceed with their actions in a timely manner. Dormant actions that result from a firm with inadequate resources initiating an action in the hopes of being able to join a consortium with other plaintiffs’ firms, are now significantly impeded. Ultimately this provision, which provides courts with more tools and enforcement mechanisms to manage cases, should generate more timely certification hearings.
CARRIAGE MOTIONS & MULTI-JURISDICTIONAL PROCEEDINGS
Carriage motions are brought by class counsel in instances of multiple overlapping class actions within the same jurisdiction. At the motion, a judge decides which class action goes forward, and which is stayed. The previous method for resolving which set of lawyers would “get carriage” of a class action was highly discretionary and added considerable delay to the action, as well as higher costs (which sometimes were recouped from the class) and overall uncertainty for the parties. To address these problems and increase judicial economy, the LCO made a number of recommendations that were largely adopted by the Ontario government in Bill 161.
Under the amendments, a carriage motion must to be brought within 60 days of commencing the proceeding, (s. 13.1(3)). Carriage decisions are now final under s. 13.1(5), reducing delays formerly caused by appeals. Importantly, a new class action involving the same class members and issues cannot be initiatied after the carriage order is made, without leave of the court (s. 13.1(6)). Collectively, these amendments will serve to reduce the confusion commonly experienced by class members under the old legislation where multiple overlapping class actions would be active for months (or longer). Early resolution of these competing actions will help to focus resources and increase judicial economy.
In the case of multi-jurisdictional class actions (i.e. class actions that address the same concern but are brought concurrently in more than one province), the LCO’s primary recommendations were to bring the CPA more closely in line with provisions in Alberta, British Columbia, and Saskatchewan. Many of the LCO’s recommendations in this regard were adopted by the Ontario government in the form of amendments to section 5 and the addition of section 5.1.
Bill 161 includes a new definition of multi-jurisdictional class actions: class proceedings which are “brought on behalf of a class of persons that includes residents from two or more provinces or territories of Canada”. Sections 5(6) and (7) of the amended CPA also set out factors for courts to consider at certification to determine whether class members in a multi-jurisdictional class action would be better served in another province. By adopting a procedure very similar to those already in place in three other provinces, it is hoped that the confusion and conflicts generated by multiple competing class actions in different provinces will be reduced – a benefit for both sides of the bar.
Concerns about the substantive outcomes of settlement distributions have been a long-running and contentious issue with respect to class proceedings in Ontario. Frequently, class members reach out to the Clinic to express concerns about the complexity of settlement claims processes and disappointment about levels of compensation. A lack of transparency can contribute to low public confidence in the class action settlement process.
To alleviate some of the concerns regarding settlement distributions, the LCO focused on changes that would make it easier for courts to monitor the implementation of a settlement, improve the process of providing the class with notice, and increase the transparency of class action outcomes. Specifically, the LCO recommended amending the CPA to include plain language requirements, provide for digital technology notices, give courts explicit authority to appoint claims administrators, impose a duty of competence and diligence on claims administrators, and provide criteria for making cy près distributions.
In response to the LCO’s recommendations, the Legislature amended sections 17(4) and 17(5) of the CPA, allowing for notice via any electronic or other means the court considers appropriate and enumerating specific requirements with respect to the contents of notice. In the current era of social media and digital advertising, encouraging firms and claims administrators to reach out to the class by these means is likely to increase awareness and transparency of the settlement distribution process.
The other major change comes in the form of the new sections 27.1 and 27.2, regarding settlement and cy-près distributions, respectively. Section 27.1(7) provides a number of evidentiary requirements that the party moving for settlement must satisfy, including a plan for allocating and distributing settlement funds. Thus, the parties cannot take a ‘wait and see’ approach and must have thought through how the settlement funds will be distributed before the settlement can be approved. Sections 27.1(13) and 27.1(14) codify existing case law and enumerate a statutory role on the part of the court to supervise the settlement and appoint an administrator if necessary. Of particular importance for class members will be section 27.1(16) which requires the administrator to file a report within 60 days of the settlement distribution. This report must include information about how many class members received notice of settlement, the number of claims made, the number of objections, administrative costs, and solicitor fees, among others.
Whether the amended CPA will improve the transparency of the class actions regime, increase access of class members to it, or decrease delay, is unlikely to be determined for many months and years to come. Though the revised certification test creates a barrier to some class actions that would have otherwise been certified, the combination of changes to carriage motions, multi-jurisdictional class actions, certification appeals, settlement distribution, and dismissal for delay could contribute to a more efficient and accountable class action system. Such a result would be good news for class members.