Lexpert Magazine

September 2019

Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.

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LEXPERT MAGAZINE | Q3 2019 37 Class Actions are ripe for reform; Ontario is set to start COMPILED BY LEXPERT T he future of Class Actions in all Canadian jurisdictions looks complicated and chang- ing. Looking at one jurisdiction for now: In July 2019, the Law Commission of Ontar- io released its much-anticipated Final Report, Class Actions: Objectives, Experiences and Reforms. Nicholas Kluge and Max Munoz of Gowling WLG LLP take us through the highlights of the Report. en Monique Jilesen and Paul-Erik Veel, of Lenczner Slaght LLP, give us their "Defence Perspective." THE REPORT BY NICHOLAS KLUGE AND MAX MUNOZ, GOWLING WLG LLP On July 17, 2019, the Law Commission of Ontario released its Final Report recommending changes to Ontario's class action legislation and practice. e Report is the final product of a 24-month process in which the LCO consulted with various stakeholders across Ontario. e more than 40 recommendations proposing amendments to the Class Proceedings Act (the "CPA") and related policies focus mainly on improving access to justice by lowering costs and minimizing delays. e Report will be formally submitted to the Attorney General of Ontario, and the provincial government will decide on a response, if any, to the recom- mendations in the Report. e Report addresses a broad cross-section of issues, including the process for initiating a class action, certification, settlement approval and distribution, counsel fees, costs, and moni- toring/reporting on class actions. In total, the LCO made 47 recommendations aimed at improving judicial efficacy, access to justice, and reducing legal costs. Here is a high-level overview of what we believe to be the most important recommendations. CLASS ACTIONS FEATURES MANAGING CLASS ACTIONS e LCO noted that delay was identified by many stakeholders as a significant issue in class action litigation. To that end, the LCO recommended the following reforms: Requiring that within one year of commencing a claim, plaintiffs deliver certification materials and schedule a certification motion. Introducing an automatic dismissal, with cost consequences, for cases that are not advanced by plaintiffs in a timely manner. Implementing a detailed process and timetable for carriage motions, including costs provisions. MULTIJURISDICTIONAL CLASS ACTIONS e LCO noted that stakeholders are of the view that the CPA does not provide sufficient guidance to Ontario courts when considering overlapping class actions in multiple jurisdictions. To that end, the LCO recommended: Formally adopting the Uniform Law Conference of Canada's Uniform Class Proceedings Act (Amendment) 2006 to harmonize provincial laws dealing with multijurisdictional class actions. Development of a national protocol or other set of rules for the recognition of provincial certification decisions and mul- tijurisdictional classes. Uniform/consistent training for judges across Canada on the management of mul- tijurisdictional class actions. CERTIFICATION e LCO concluded that the certification regime in Ontario does not warrant major reform, but it did make the following rec- ommendations: Encouraging courts to interpret elements of the certification test more rigorously, including by considering whether alterna- tive remedies are available. Encouraging courts to support pre- certification summary judgment motions and motions to strike if they are likely to dispose of the action or narrow the issues. SETTLEMENT APPROVAL e settlement approval process requires CLASS ACTIONS AT A CROSSROADS

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