Twenty-six years ago, the Ontario Class Proceedings Act introduced class action litigation to Canada’s most populous province. The law has gone unchanged since, but the Ontario Law Commission will soon release a report, and likely some recommendations, to the province’s government to consider.
The Ontario system’s low certification standards, the increasing availability of third party litigation funding, and the unbalanced application of the loser pays principles certainly suggest an update is necessary.
As a guide, the U.S. Chamber Institute for Legal Reform filed public comments last week to the Commission regarding the law, including recommendations on how to balance what has become a slanted system.
ILR’s recommendations can serve help steer the Commission toward a system in which “access to justice” means access to balanced and reasonable results, not just access to the system itself. The series of reform recommendations offer the Commission a way forward on:
- Addressing certification standards to safeguard against abusive litigation
- Balancing the currently asymmetrical appeal rights
- Avoiding overlapping cases in multiple provinces
- Setting reasonable limitation periods
- Introduce transparency to third party litigation funding arragemnts that are currently shielded from public scrutiny
The Commission’s review of the Ontario Class Proceedings Act comes at an important time for businesses operating in Canada. Class action litigation is becoming more commonplace and is expanding into different areas of Canadian law. The Commission now has the opportunity to lead Canada towards a better legal system.