The Ontario government is currently considering “Bill 161, Smarter and Stronger Justice Act, 2020”, which proposes to make a number of changes to the Class Proceedings Act. While some of the changes are welcome, one in particular has the plaintiff’s bar sounding the alarms, and for good reason. The proposed amendments would create a barrier for Ontarians to bring class actions against the government and big institutions in cases such as nursing home negligence, defective medical device cases, workplace discrimination claims, human rights abuse cases and many more.
The Ontario government is currently proposing changes to the legal test that would see the introduction of two concepts known as “predominance” and “superiority” at the certification stage.
With the introduction of the “predominance” requirement, a court could refuse to allow a class action to proceed if individual issues (such as damages) would likely predominate over common issues (such as common liability).
The superiority requirement would mean that if another procedure for obtaining compensation, or for punishing a wrongdoer, exists then a court could refuse a class action to proceed.
The consequences of these amendments would be devastating, and would bar almost all proposed class actions where injuries or damages varied between class members, as they would fail the predominance test. It would also allow the court to refuse to certify a class action simply on the basis that another procedure “exists”, without taking into account whether that alternative procedure is an effective means of obtaining justice for a plaintiff.
Many members of the plaintiff’s class action bar, such as HSH co-counsel Margaret Waddell and John Phillips of Waddell Phillips PC and David Sterns of Sotos LLP have appeared before the Standing Committee on Justice Policy in the last few weeks advocating that these changes are the result of lobbying of big business, and that nowhere in the Law Commission of Ontario’s July 2019 report had the introduction of predominance and superiority been recommended.
Howie, Sacks and Henry LLP stands with and supports the joint submission made to the Committee and urges the Ontario Government to remove these requirements from Bill 161.
Howie Sacks and Henry LLP thanks these advocates for their continued efforts in addressing this important access to justice issue.
 Section 7(2) of the Bill: https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2019/2019-12/b161_e.pdf