If the class-actions against local institutions such as the Huronia Regional Centre, the Edgar Adult Occupational Centre and the Sheila Morrison School were proposed today, they might not make it through the classification process.
Attorney General Doug Downey’s new omnibus bill, passed in July, introduces more stringent tests which lawyers say will make it difficult to sue institutions through class-actions.
“There’s a good chance that none of those institutional abuse cases could have been certified,” said Jasminka Kalajdzic, a University of Windsor law professor and director of the Class Action Clinic at Windsor Law. “On the new test, it’s hard to see how a case could ever pass the predominance requirement based on one issue.”
Kalajdzic served as an advisor to victims of abuse at the former Huronia Regional Centre in Orillia when the representative plaintiffs and their litigation guardians sought additional help with the class action process.
It was one of three successful class-actions focusing on historical abuse at Simcoe County institutions that were settled between 2010 and 2016.
More recently, she was also co-author of the Law Commission class-action report, which the government largely adopted in developing the new amendments in Ontario’s not quite 30-year-old Class Proceedings Act contained in Bill 161 — but for two changes to the certification test.
Of the 100-plus stakeholders involved in the process and 30 submissions submitted for the review, only one — a joint submission from the Canadian bankers and insurance associations — asked that the certification test be changed “to look more like the U.S. class-action rule that has two requirements that we never had in Ontario and that no other province in the country has,” said Kalajdzic.
Before a class-action can proceed, a judge needs to certify it to ensure it meets the minimum requirements. Under the amendments, “predominance and superiority” have been added as requirements, which lawyers say raises the bar.
Now for a class-action to go ahead, it must be deemed to be the superior way to go over individual lawsuits and a common issue of harm must predominate over all the individual issues for those in the prospective class.
Kalajdzic, who appeared as a witness before the standing committee asking that those additional requirements be removed from the certification test, says their inclusion will make class-actions more difficult to achieve.
“Class-actions will be less available, particularly in situations of product liability, medical devices, drugs, anything involving personal injury," she said, because those usually involve some individual issues that don't involve everyone in the group.
From Loretta Merritt’s perspective, that’s not a bad thing.
“Most of the historical abuse cases certified to date involve abuse in residential institutions. Where the common issue is vicarious liability it may not predominate over individual issues,” said Merritt, who believes that victims of institutional abuse are better off going it alone through individual lawsuits.
In addition to a more stringent test, the amendments require the administrator distributing settlement funds to file a report with the court no more than 60 days after the money is fully distributed, setting out the particulars of the distribution.
She hopes that additional aspect of public accountability for the payments to survivors may cause courts to think twice before certifying cases involving abuse.
“When the amendments to the CPA (Class Proceedings Act) contained in Bill 161 come into force and effect, courts may have increased power to address these problems,” she said. “The provisions relating to the certification test and requiring a report after distribution of settlement funds may help.”
Jenessa Crognali, spokesperson for Downey, who is also the local MPP for Barrie-Springwater-Oro-Medonte, said the amendments introduce the most comprehensive changes to the province’s class-actions process in 25 years.
“They are designed to help Ontarians resolve their legal issues faster and receive meaningful access to justice,” she said. “These improvements address issues that clog the system and slow down justice.”
Crognali said they are also intended to promote fair and transparent settlements for people who are part of class-action lawsuits; ensure the interests of Ontarians are at the heart of class-action lawsuits; improve transparency and court oversight in cases where a third-party funds a lawsuit; and allow class-action cases to be resolved faster, which would free up time and resources in Ontario’s courts.
Kalajdzic says the changes are meant to improve how groups of people who are harmed by organizations can collectively see redress, after having had the experience of being able to use the approach of class-actions.
“Our lens was always through the eyes of class-action, class members and how we make the system better for Ontario. We thought, at the end of the day, that we came up with a balanced report,” she said.