By Aislyn Sax, 2L, and Jasminka Kalajdzic
In October 2020, Ontario’s Class Proceedings Act (CPA) was amended for the first time since it was introduced in 1992. One of the biggest changes was to add two requirements to the certification test, predominance and superiority, which many lawyers predicted would make certification harder for class members and would deter lawyers from bringing national class actions in Ontario.
There are now a handful of cases in which the more ‘rigorous’ and ‘stricter’ certification test was applied, with mixed results; certification was granted in one case and denied in the other. Class Action Clinic caseworker Victoria Delicata has written a related blog comparing these two cases.
Were the predictions by both defence firms and class counsel correct? Did the amendments result in a decrease in class actions initiated or filed in Ontario? Has British Columbia become the favoured jurisdiction in which to file new cases, as was forecast?
It has now been over three years since the amendments came into effect which means we can look to see if the predictions were true. We looked at the annual filing rates for Ontario and BC and compared them to each other and to previous years. We chose BC because it would be the likely alternative for plaintiffs to proceed with their national class actions due to BC’s no-cost rule (which means the plaintiff will usually not have to pay the defendant’s legal costs if the plaintiff loses the certification motion) and the less demanding certification test which does not make predominance and superiority mandatory, rather just a factor to consider.
Source of the Data
The data for Ontario’s filings was taken from previous student research for the Class Action Database, which aims to catalogue all Ontario based class actions. This included looking at what was available online through class counsel websites, Ontario’s Justice Services Online, and decisions across legal research sites using search terms within certification and settlement decisions such as ‘initiated, commenced, started, etc..’ This means that cases that did not produce reported certification decisions are not represented in the data.
Data for the BC actions, which do not have an independent database, was derived from a few sources, including an article by McCarthys in 2022 which tracked BC cases initiated in 2019-2021. These numbers were very similar to statistics reported by a BC judge at the Barreau du Québec’s National Conference on Class Actions held in late 2023. The data for 2022 also came from the same conference presentation (slides are on file with author).
Finally, the 2023 and 2024 statistics were obtained from the Canadian Bar Association’s National Class Action Database. Because it is not mandatory to register cases on the CBA Database, the information for these years is likely incomplete.
Analysis of Data
Overall, we see that there were more class actions initiated in BC than in Ontario after the October 2020 amendments came into force. In contrast, in 2019 the number of new actions in each of the two provinces was about equal. In 2021-2023, the number of BC filings was significantly higher than Ontario’s.
Table 1: Total Class Actions initiated in BC and ON in 2019-2024
2019 | 2020 | 2021 | 2022 | 2023 | To April 1, 2024** | |
BC | 45 | 64 | 70 | 64 | 51 | 12 |
ON | 40 | 74 | 39 | 48 | 35 | 7 |
We also identified the number of actions filed between October 1 and December 31, 2020, to examine the impact of the amendments. Of the 74 new class actions filed in Ontario in 2020, only ten were initiated after the amended CPA came into force.
Table 2: Number of actions initiated between October 1, 2020 and December 31, 2020
Privacy | Crown Liability | Pharma | Product Liability | Consumer Protection | Securities | Professional Negligence | Insurance | Employment | Competition | Other | Total | |
BC | 3 | 2 | 1 | 6 | 3 | 0 | 0 | 3 | 1 | 0 | 0 | 19 |
ON | 1 | 1 | 0 | 2 | 1 | 0 | 1 | 1 | 0 | 1 | 2 | 10 |
The data should be analyzed in historical context. According to McCarthy Tetrault, approximately 19 class actions were launched in BC every year up to 2019, when the number more than doubled. By comparison, the LCO estimated that at least 60 new actions were commenced in Ontario annually from 2005 to 2017. For over two decades up to 2017, therefore, new class actions in Ontario outpaced new cases in BC by a factor of 3:1.
By 2019, we found that the number of actions initiated in Ontario and BC were about equal with a slight BC advantage. One reason for the uptick in BC may be that the province enacted amendments to its Class Proceedings Act in October 2018 which allowed for opt-out national class actions instead of out-of-province members having to take the active step of opting in.
In 2020 the number of Ontario actions slightly outnumbered BCs but then sharply dropped in 2021. In both 2022 and 2023, BC’s filings were about 30-60% higher than those in Ontario. The results support the hypothesis that the amendments to the Ontario CPA have reduced the number of class actions brought in the province and that BC has become the favoured jurisdiction.
Class Actions Initiated by Type
We also see some differences in what kinds of actions have been initiated across both jurisdictions, with BC having generally more privacy and product liability cases than Ontario. On the other hand, Ontario has had more securities and employment cases.
There are various reasons why these general patterns have emerged. For example, many companies are listed on the Toronto Stock Exchange and rely on Ontario Securities legislation; it therefore makes sense that securities class actions tend to be filed in Ontario. The no-costs rule of BC is attractive for privacy actions as certification for privacy related causes of action are not as settled as other areas of law. (You can read more about privacy actions in our blog: Privacy Breach Class Actions: Plainly and Obviously Doomed to Fail?)
The class actions were categorized into ten of the most common areas of law found in class actions and closely follow the categories used by both the CBA and the LCO in its Class Action Project. More details about the categories can be found in Appendix C of the LCO Consultation Paper.
These categorizations only apply to the cases registered on the CBA database for BC as the McCarthys’ article did not specify case type. ON cases are all categorized based on all information that was available online.
Table 3: Total Class Actions Registered in CBA Class Action Database in BC 2019-Present by Area of Law
Year | Privacy | Crown Liability | Pharma | Product Liability | Consumer Protection | Securities | Professional Negligence | Insurance | Employment | Competition | Other | Total |
2019 | 8 | 4 | 8 | 8 | 5 | 1 | 0 | 1 | 2 | 0 | 2 | 39 |
2020 | 9 | 2 | 3 | 8 | 5 | 0 | 0 | 9 | 1 | 2 | 2 | 51 |
2021 | 5 | 9 | 5 | 8 | 3 | 5 | 4 | 0 | 3 | 1 | 4 | 47 |
2022 | 3 | 16 | 0 | 8 | 7 | 1 | 1 | 0 | 0 | 1 | 3 | 40 |
2023 | 6 | 2 | 5 | 16 | 5 | 6 | 0 | 1 | 0 | 2 | 8 | 51 |
2024 | 0 | 4 | 1 | 3 | 2 | 1 | 0 | 0 | 0 | 0 | 1 | 12 |
Table 4: Total Class Actions Initiated in ON 2019-Present by Area of Law*
Year | Privacy | Crown Liability | Pharma | Product Liability | Consumer Protection | Securities | Professional Negligence | Insurance | Employment | Competition | Other | Total |
2019 | 5 | 1 | 4 | 6 | 6 | 7 | 1 | 0 | 6 | 0 | 4 | 40 |
2020 | 7 | 4 | 3 | 5 | 11 | 5 | 2 | 8 | 15 | 1 | 13 | 74 |
2021 | 3 | 3 | 3 | 6 | 6 | 5 | 0 | 0 | 8 | 0 | 5 | 39 |
2022 | 0 | 5 | 3 | 6 | 19 | 9 | 0 | 1 | 4 | 0 | 1 | 48 |
2023 | 3 | 4 | 1 | 1 | 6 | 7 | 0 | 0 | 2 | 2 | 9 | 35 |
2024 | 0 | 1 | 0 | 0 | 2 | 3 | 0 | 0 | 0 | 0 | 1 | 7 |
Analysis of types of Cases Initiated
Privacy: Generally, there were more privacy actions in BC than ON year over year.
Crown Liability: There were comparable numbers of crown liability cases except for BC in 2022 which had an exceptional number.
Pharma: There was no significant difference between the two jurisdictions.
Product: Year over year there were more product liability cases in BC.
Consumer Production: There was no significant difference between the two jurisdictions.
Securities: There were more securities cases in Ontario year over year.
Professional Negligence: These were infrequent and inconsistent across both jurisdictions.
Insurance: These were infrequent and inconsistent across both jurisdictions.
Employment: There were generally more cases in Ontario, but the number of cases varied over the years
Competition: There were few competition cases overall.
Other: Generally, these were comparable across jurisdictions.
Why Does This Matter?
The data confirms that more class actions are now being pursued outside of Ontario. Time will tell if the trend continues, which will largely depend on the evolution of the court’s interpretation of the amended certification test. As we only have a few decisions that interpret the new requirements of predominance and superiority, the law is not yet settled. It may be that Ontario courts eventually determine the new standard is not as onerous as it originally seemed, making Ontario a more plaintiff-friendly jurisdiction again. However, we would expect the downward trend in Ontario to continue if certification prospects remain more likely in BC. Ultimately, access to justice may be impeded if Ontario residents are unable to find willing class counsel to take on their potential class actions.
* More complete information for the Ontario actions initiated was taken from Law Commission of Ontario’s Class Action Database hosted by the Class Action Clinic.
** The results for 2024 are current as of April 1, 2024, but new case registrations are not immediately uploaded to the Canadian Bar Association’s database.
