By: Mackenzie Coleman, University of Alberta Law Student
Class action proceedings are a legal mechanism which allow one or more individuals, known as the representative plaintiff(s), to bring a lawsuit on behalf of a larger group who share common issues. The outcome of a class action binds all members of the class, unless individuals have opted out of the proceedings. Before a class action can procced, the case must be certified by a court. To be certified, the case must meet specific criteria, such as an appropriate representative plaintiff, an identifiable class, and common issues of fact or law.[1]
Access to justice is often increased through class action litigation as a larger group shares the cost of litigation. As stated by the Supreme Court in Western Canadian Shopping Centres Inc v Dutton, “by allowing fixed litigation costs to be divided over a large number of plaintiffs, class actions improve access to justice by making economical the prosecution of claims that would otherwise be too costly to prosecute individually”.[2]
Different provinces have differing legislation regarding class proceedings. However, all provinces share three primary objectives:
- Promoting access to justice by providing a mechanism for compensating claimants who otherwise may not be in a position to individually litigate their claims;
- Ensuring that such proceedings promote judicial economy by avoiding multiple actions involving similar claims advanced against the same same party(ies); and
- Holding offending organizations accountable for their actions and compelling them to modify their behaviour accordingly.[3]
The most important of these objectives is promoting access to justice.
Boucher et al. v The Government of Manitoba (“Boucher”) is a 2023 Manitoba Court of King’s Bench decision about whether the proposed class, Indigenous students, suffered abuse at schools in Manitoba for which the government of Manitoba is liable.[4] The plaintiffs sought an order to classify the action as a class proceeding and appoint the plaintiff as the representative plaintiff of the class.
In Boucher, Justice Grammond discussed class proceedings as an access to justice issue. Boucher quotes Pisclevich, which states that class proceedings are the preferrable process when considering policy objectives such as “access to justice, judicial economy, and the modification of the behaviour of wrongdoers”.[5] In Boucher, the plaintiffs argued that the proposed class members in this case are “unable to bring their own individual claims, given their collective lack of financial means, and the remote locations in which some of them reside, where they cannot access the court or counsel”.[6] Further, the plaintiffs submit that the claim proceeding as a class action is the only way that the proposed class will be compensated for the harm suffered. The government of Manitoba argued that a class action would impede access to justice because it would be quicker to address individual claims than resolve common issues. While the claim was filed in July 2018, the certification motion was not heard until 2023. In comparison, a legitimate individual claim could have been heard and resolved much faster.[7]
Justice Grammond acknowledged that the proposed class in this case “may well be comprised of many vulnerable individuals with a variety of health of other issues, who may have no means to fund litigation. As such, a class proceeding may be the only means by which these individuals can bring forward their allegations”.[8] However, the Claim could not be certified, in large part because the class definition was too broad and imprecise. Justice Grammond added, however, that if “the proposed class definition and proposed common issues could be certified, [he] would accept that for reasons related to access to justice, a class action would be the preferable procedure to be pursued”.[9]
Class actions, to conclude, can promote access to justice by allowing claimants to assert their rights collectively. While Boucher was unsuccessful in receiving a class action certification, class actions continue to be used by Canadian courts to increase access to justice. Indeed, Boucher itself may have been certified (at least in part) had the class been more precisely drawn.
[1] Molly Reynolds et al, “Class Actions in Canada Part 1: Class Proceedings 101”, online: < https://www.torys.com/en/our-latest-thinking/publications/2017/10/class-actions-in-canada-part-1-class-proceedings-101>
[2] Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at para 28.
[3] John Rossos, “Access to justice: using third party financing to fulfill the promise of class action litigation”, online: < https://bridgepointfinancial.ca/resources/Access-to-Justice-CCAR-John-Rossos.pdf>.
[4] Boucher et al v The Government of Manitoba et al., 2023 MBKB 182 at para 1 [Boucher].
[5] Pisclevich et al v The Government of Manitoba et al., 2018 MBCA 127 at para 45.
[6] Boucher, supra 1 at para 105.
[7] Ibid at para 106.
[8] Ibid at para 107.
[9] Ibid at para 106.