34 LEXPERT MAGAZINE
|
SEPTEMBER 2016
COVER STORY
NEW
CLASS ACTION LAWYERS
have been fond of pointing to the swinging
pendulum of jurisprudence that shis its ever-roving eye over the class-action
battleground. In recent years, however, that pendulum may have begun to settle
down, as definitive rulings pile up and legal principles become entrenched.
It's been almost a quarter of a century since Ontario became the first common-
law province to adopt class-action legislation, and almost 40 years since Q uébec
laid the groundwork for the rest of the country. e pendulum is still shiing, but
there's a difference: it now hovers over a battleground that has started to take real
shape, developing defined parameters within which the pendulum moves.
So while it may be easy to say that the past year has been less than ideal for class-
action plaintiffs, and that the pendulum has swung over to the defence side, it's
also a simplistic approach. e truth is that the jurisprudence is increasingly refin-
ing the parameters, with less need to define them.
"We used to be all over the map, but now we're getting closer to knowing what's
a blip and what is permanent and how it's going to work," says Tristram Mallett of
Osler, Hoskin & Harcourt LLP in Calgary. "We're not all the way there yet but
we're getting closer. What's gone for sure are the days when lawyers would spend
two days arguing about what the test for certification is."
Daniel Bach of Siskinds LLP in Toronto says the evolution of the summary judg-
ment procedure in the class-action context also demonstrates the emerging matu-
ORDER
The rules around Canadian
class actions — for decades,
a work in progress — have finally
found some measure of clarity.
Could the Wild West era be over?
BY JULIUS MELNITZER
