Throughout 2021, the Superior Court of Justice in Ontario has introduced amendments to its Consolidated Provincial Practice Direction with important changes to its directions on class actions:
- Effective January 18, 2021, Paragraph 43-44 in Part II (class proceedings) of the Consolidated Provincial Practice Direction now requires costs outlines in certification and other motions, and creates a new Class Proceedings Judge’s Book of Authorities.
- Another welcomed resource was introduced by the courts with the launch of the Best Practices Guide drafted by the Class Actions Bench-Bar Liaison Committee.
- Most recently, and effective June 21, 2021, Paragraph 42.1 of the Consolidated Provincial Practice Direction now links to model orders prepared by the Class Actions Bench-Bar Liaison Committee.
At para 43, the Direction provides:
43. In order to assist the judge hearing pre-trial motions in determining the reasonable costs expectations of the unsuccessful party and assessing the reasonableness of the amount claimed for costs by the successful party:
a. Counsel for the parties to a motion brought before the judge are expected to follow the provisions of Rule 57.01(6) of the Rules of Civil ProcedureRRO 1990, Reg 194, concerning costs outlines.
b. Unless the parties have agreed on the costs that it would be appropriate to award for the subject motion, every party who intends to seek costs for the motion shall:
i. Provide to every other party involved in the motion, and bring to the hearing, a costs outline (Form 57B), not exceeding 3 pages in length; and
ii. Provide to the judge hearing the motion, at the commencement of the motion, a copy of their costs outline in a sealed envelope.
c. While it would be preferable for the parties to complete all sections of Form 57B before the costs outline is submitted, it will be acceptable if the costs outline provides, at a minimum, the fees and disbursements requested, as required in the first part of Form 57B, and the details of the amount claimed (the hours spent, the rates sought for costs and the rate actually charged by the party’s lawyer) as required in the last section of Form 57B.
d. Counsel for the parties to a motion are expected to consult with one another, in advance of the hearing, with a view to resolving the issue of the costs of the hearing and are encouraged to agree on the amount to be awarded to the successful party as costs of the hearing, including fees, disbursements and HST.
e. Nothing herein prevents the parties from making cost submissions following the determination of the motion, nor does anything herein affect the right of the Law Foundation of Ontario to make costs submissions and/or present evidence in respect of costs, in accordance with Rule 12.04 of the Rules of Civil Procedure, in cases where the plaintiff has received financial support from the Class Proceedings Fund of the Law Foundation of Ontario.
Class Proceedings Judges’ Book of Authorities
In an effort to reduce the large volume of cases parties include in their respective books of authorities, the court has introduced the new Class Proceedings Judges’ Book of Authorities. The new text is described at paragraph 44 of the Provincial Practice Direction and provides:
44. The Class Proceedings Judges’ Book of Authorities contains authorities frequently relied on in class proceedings and is made available electronically to each judge hearing motions in class proceedings. There will be additions to, and deletions from, the book from time to time.
a. In preparing books of authorities, counsel need not include authorities contained in the Class Proceedings Judges’ Book of Authorities. However, extracts from those authorities which counsel intend to refer to the Court should be included in the filed book of authorities.
b. Where possible, books of authorities should be prepared jointly among the parties. Where counsel are unable to agree on a joint book of authorities, then there should be consultation between counsel to avoid any duplication of the authorities included in their respective books of authorities.
The new requirements for parties are effective January 18, 2021. The full text of the practice direction can viewed online.
Best Practices Guide
Another welcomed resource for the class actions bar is the launch of the Best Practices Guide drafted by the Class Actions Bench-Bar Liaison Committee. The Guide was prepared to assist both counsel and judges by providing suggested topics and processes to be considered in the case management of class actions. It includes easy-to-follow checklists for counsel to follow from the early stages of an action pre-certification to post-certification considerations, with the inclusion of draft timetables for scheduling.
Linked to para 42.1 of the Consolidated Provincial Practice Direction are six Class Actions Model Orders:
- Discontinuance model order
- Carriage model order
- Certification (contested) model order
- Notice approval and consent certification for settlement purposes model order
- Fee approval model order
- Settlement approval model order
The use of model orders are intended to expedite the issuance of orders in class proceedings. Under the new practice direction, where the above Model Orders have been approved by the Class Action Bench-Bar Liaison Committee, a copy of the draft order blacklined to the model order and indicating all variations sought from the model order must be filed with the court.
While class actions can be a complex vehicle for multi-party litigation, these new directions on cost outlines, the addition of the Class Proceedings Judges’ Book of Authorities, Best Practices Guides, and model orders are welcomed tools to assist in streamlining the class proceedings process to allow class actions to move more efficiently (and hopefully more quickly) through our courts.