Class Proceedings Act 5-part certification test, preferable procedure analysis, carriage motions, settlement approval (Dabbs factors), and cy-pres awards for Ontario class action practitioners.
Ontario's Class Proceedings Act, 1992 (CPA) provides the framework for class action litigation — one of the most complex and high-stakes areas of civil practice. Ontario is one of Canada's most active class action jurisdictions. This guide covers the certification test, strategic considerations, carriage disputes, and settlement approval requirements that Ontario class action practitioners navigate.
Certification is the gateway to a class proceeding. The plaintiff bears the burden on all five elements. The standard for factual assertions is "some basis in fact" — not a balance of probabilities. The certification motion is not a merits hearing.
Standard: Pleadings must disclose a cause of action — same test as motion to strike; accepts all pleaded facts as true
Key point: The lowest bar — courts are very reluctant to refuse certification on this element alone; bare minimum pleading requirements
Standard: Class can be defined by reference to objective criteria — not dependent on merits of the claim; must be possible to determine membership
Key point: Class definition is a key strategic decision — too narrow loses class members, too broad creates manageability problems; class can be defined by reference to a date range, geographic area, or type of transaction
Standard: Issues common to all class members — success for one class member must advance the position of all. Need not be determinative of liability; even one common issue can support certification
Key point: Defendants argue individual issues predominate; plaintiffs argue common issues advance the litigation even if individual issues remain. The 'some basis in fact' standard applies to factual assertions — not a full merits hearing
Standard: Class action must be preferable to other available means (individual actions, regulatory proceedings, etc.) for resolving common issues
Key point: Two-branch test: objectives (behaviour modification, judicial economy, access to justice) and manageable (workable litigation plan). Not required to be perfect — only preferable
Standard: Representative plaintiff must: fairly and adequately represent class interests; have a workable litigation plan; have no conflict of interest with class members
Key point: Defendants regularly challenge adequacy of representative plaintiff. Disqualifying conflicts include claims that differ materially from the class, or undisclosed financial arrangements
The common issues element is typically the most contested at certification. Plaintiffs frame issues broadly to encompass the class; defendants argue individual issues predominate. Post-certification, common issues are tried first; individual issues (damages, causation) follow in individual proceedings or aggregate damages.
Under s. 29 CPA, any settlement, discontinuance, or abandonment of a class proceeding requires court approval. The leading case is Dabbs v. Sun Life Assurance (1998), which identified the factors Ontario courts apply.
Where unclaimed or undistributed settlement funds remain after the claims process, courts may approve cy-pres distribution to charitable or non-profit organizations with a nexus to the class's interests or the subject matter of the litigation. Cy-pres recipients must be approved by the court; class counsel typically proposes candidates and the court scrutinizes the nexus and the organizations' independence.
Where multiple plaintiff firms file competing class actions arising from the same facts, a carriage motion determines which counsel proceeds. Courts apply a multi-factor analysis with no single determinative criterion.
Under s. 5(1) of the Class Proceedings Act, 1992, a proceeding may be certified as a class action if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons; (3) the claims of the class members raise common issues; (4) a class action is the preferable procedure for resolution of the common issues; and (5) there is a representative plaintiff who will adequately represent the class, has a workable litigation plan, and has no conflict of interest with class members. All five criteria must be met.
The preferable procedure requirement (s. 5(1)(d) Class Proceedings Act) asks whether a class action is preferable to other available means of resolving the common issues. Courts apply two branch analysis: (1) does the class action satisfy the objectives of behaviour modification, judicial economy, and access to justice better than other alternatives?; (2) is the class action manageable, given the nature of the common issues and the proposed litigation plan? A class action need not be the perfect procedure — only the preferable one.
When multiple law firms file competing class action proceedings arising from the same events, a carriage motion determines which firm will have carriage (control) of the litigation. Courts assess: the nature and scope of the causes of action advanced; the theories of liability; the proposed class definitions; the state of each proceeding; the resources and experience of counsel; and the fees proposed. Carriage motions are decided before certification.
Under s. 29 of the Class Proceedings Act, a class action settlement requires court approval. The court must be satisfied the settlement is fair, reasonable, and in the best interests of the class as a whole. The hearing requires: notice to class members, opportunity for class members to object, class counsel's fees approval (separate from settlement), and affidavit evidence on the negotiations and settlement factors. Courts apply the Dabbs factors: likelihood of recovery, amount offered vs. amount achievable at trial, complexity and cost of continued litigation, views of class members, and class counsel's views.
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