Until very recently, most knowledgeable class actions practitioners in Canada would have said that there have been very few full-blown class action trials in this country. The conventional view was that any plaintiff who could achieve a certification order in a class action would shortly arrive at a settlement agreement in the case. Trials and verdicts? Like Sasquatch, they were more frequently cited than sighted.
In 2011, after undertaking a well-contested 45-day class action trial of our own, and with another of our class action matters scheduled for trial shortly thereafter, my colleagues (Sarah Graham, Genevieve Meisenheimer, Lauren Nielsen) and I began to suspect that the traditional view might no longer be accurate.
In our experience, class action trials certainly seemed to be no myth: we had begun hearing about more than a few other matters making their way through trial courts across the country. We grew curious about how many other Canadian class actions had actually gone the distance. As it happens, I had also been asked to present on the topic of class action trials at a handful of conferences, so we had every reason to immerse ourselves in a thorough research project.
We divided Canada into sections among our team, established our methodology, and set out to find our answer. We quickly found that there were no formal resources specifically on this topic, aside from a good survey that had been conducted solely for the province of Ontario. In addition to traditional resources like these, we called practitioners, court services staff, and other less conventional sources nationwide. We received a warm reception and lots of helpful assistance from every corner of the country.
Once the dust had settled, the results were remarkable — to us and to many other practitioners in the class actions field! We determined that there have been at least 92 class action trials in Canada — a number far greater than we expected.
The largest number of trials has occurred in Quebec, with Ontario coming on strong recently with a number of very significant trials and appeals. The following subject matters have been tried: consumer law, employment, pensions, environmental law, insurance, medical devices, claims against governments, securities and financial services, and products liability, among other areas.
These results show us that the various class actions regimes across our country are functioning well and are maturing at a good rate. Perhaps it’s not widely known, but we now have a fairly meaningful body of law in Canada respecting common issue trials, both procedurally and substantively, upon which to draw.
For my part, I see the potential for the trend toward increased trial activity to accelerate. There are many cases in the queue, and certification orders have been granted at a steady and appropriate rate. Most importantly, the data shows that both sides of bar have an increased appetite to try these matters. The hunt for the legendary class action trial has moved out of the realm of myth and into everyday legal practice.
We have continued to keep our statistics updated and have re-published them a number of times for successive conferences. Here are the most recent statistics we have compiled by province:
Canadian Class Actions Trial Statistics
The full dataset and list of trials can be accessed at http://harrisonpensa.com/summary-class-action-trial-activity-canada/