On December 9, 2019, the Attorney General, Doug Downey, unveiled Bill 161, “An Act to enact the Legal Aid Services Act, 2019 and to make various amendments to other Acts dealing with the courts and other justice matters.” The Bill has been referred to by its short title “Smarter and Stronger Justice Act,” and has had its first reading. Schedule 4 contains the amendments to the Class Proceedings Act, 1992 (the “CPA”), the statute governing class actions in Ontario. Included among the proposed amendments are changes to the appeal procedures in class actions.
Current Appeal Process
Section 30 of the CPA sets out the provisions governing appeals of class action orders:
30 (1) A party may appeal to the Divisional Court from an order refusing to certify a proceeding as a class proceeding and from an order decertifying a proceeding.
30 (2) A party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court.
Pursuant to s. 30(1) of the CPA, the plaintiff has a direct right of appeal to the Divisional Court from a refusal to certify a class proceeding. Section 30(2) requires the defendant to obtain leave to appeal from the Divisional Court. Only after the Divisional Court decides an appeal do further appeals go to the Ontario Court of Appeal with leave.
Ontario is distinct from other provinces in its appeal route in class actions. No other province or the Federal Court have divided appellate jurisdiction as seen in Ontario between the Divisional Court and the Ontario Court of Appeal. In the Law Commission of Ontario’s (the “LCO”) final report “Class Actions, Objectives, Experiences and Reforms” (the “Report”) released in July 2019, the Report noted that Ontario remains the only common law province with asymmetrical appeal rights as between plaintiffs and defendants. The LCO recommended that s. 30 of the Act be amended to provide both parties with a right of appeal to the Ontario Court of Appeal from certification orders.
Proposed Amendments to the Appeal Process
In line with the LCO’s recommendation, the proposed amendment to section 30 of the CPA is amended to change the appeal route so that (1) A party may appeal to the Court of Appeal from an order, (a) certifying or refusing to certify a proceeding as a class proceeding; or (b) decertifying a proceeding.
However, the proposed amendments do not end there. Included in the amendments to section 30, the amended s. 30(2) provides, the appellant may not materially amend the notice of certification motion, pleadings or notice of application on an appeal of an order refusing to certify a proceeding as a class proceeding, except with leave of the court in exceptional or unforeseen circumstances.
These two proposed amendments to the appeal process in class actions appear to be an attempt to modernize and streamline class actions procedure. Whether these amendments will ultimately come to fruition remains to be seen. The amendments will likely be debated by the Ontario Legislature in the coming months and may be further amended before we see the adoption of a revised class proceedings statute.