Canada: "Controversial" Changes To Ontario Class Actions Law Recommended By Commission

Last Updated: July 24 2019
Article by Laura Fric and Eleanor Vaughan

After two years of review, the Law Commission of Ontario ("LCO") has recommended wide-ranging changes to Ontario's class actions regime. In its report released on July 17, 2019, the LCO acknowledged that some of its recommendations would be "controversial".

The LCO prioritized issues with a systemic impact on class action litigants, practice and outcomes. Its report recommends changes to nearly all steps of class actions, from commencement of the cases, to certification, settlements, and counsel fees – including having a "no costs" regime for certification motions, encouraging dispositive early motions (such as motions to strike), and requiring defendants to report on resulting changes to their corporate practices. Key recommendations are described below.

Background: The Class Actions Project  

The LCO's class action project was the first comprehensive, independent review of the Ontario Class Proceedings Act ("CPA") since its introduction almost 30 years ago. Over this period, Ontario class actions have grown significantly in volume, complexity, and impact. The LCO estimates that approximately 1,500 class actions were initiated in Ontario between 1993 and February 2018, most frequently including Securities Act, Competition Act, and product liability matters.

Key recommendations

In making recommendations, the LCO's stated goal was not to achieve consensus, but to identify "principled, practical, and forward-looking recommendations." 

Deterring undue delay

Delay was cited by "virtually everyone" consulted by the LCO as a significant issue. The LCO recommends amending the CPA to establish a one year deadline for the plaintiff to schedule the certification motion and file its certification motion. The LCO also recommends introducing an automatic dismissal and costs provision for cases that are not advanced by plaintiffs in a timely or appropriate manner.


The LCO's report estimates that 73% of contested certification motions in Ontario are eventually granted, in whole or in part. Ontario's certification rate was roughly equivalent to that of Quebec but higher than other Canadian jurisdictions. The LCO stated that while the "certification rate in Ontario appears high," there is "no simple or accepted statistical benchmark of what constitutes an appropriate certification rate".  Some might say that the high certification rate is a sign that the system is granting access to justice.

The report concludes that the existing certification test set out in the CPA is generally sufficient and does not warrant major reform. Instead, the LCO recommends encouraging courts to interpret the existing elements the test (particularly that a class proceeding be the "preferable procedure") more rigorously.

Noting that "summary judgment motions are underutilized in class actions," the report also recommends  that courts support pre-certification motions to dispose of the action or to narrow the issues for certification.  If adopted, this could be a significant change, as courts have historically been cautious about pre-certification motions to avoid delay.

Settlement approval

Identifying a significant need to improve the settlement approval process, the LCO recommends the CPA be amended to require courts to consider whether the proposed settlement is "fair, reasonable, and in the best interest of the class."  This test is often imposed by case law, but is not included in the CPA.

Perhaps more significantly, the LCO recommends setting higher evidentiary standards for parties seeking settlement approval - including requiring evidence regarding the risks of litigation, the range of possible recoveries, and the method of valuation of the settlement.  To date, evidence on settlements is rarely so detailed or rigorous in Ontario.

Settlement distribution and fee approval

While the LCO considered the issue of plaintiff firm fees compared to compensation obtained by class members, it did not make specific recommendations that would directly tackle the perceived issue.

The report noted that a frequent criticism is that "plaintiff counsel appear to earn millions in counsel fees while individual class members receive comparatively little compensation for their damages." The LCO notes that this view is too simple, but recommends amending the CPA to specify that counsel fees must be fair and reasonable. Again, this test is often imposed by case law, but is not included in the CPA. When considering whether a proposed fee is fair and reasonable, the LCO recommends that courts consider the results achieved for the class and the degree of responsibility and risk assumed by class counsel.

The LCO recommends adding provisions to the CPA to require detailed final outcome reports at the end of the distribution period.

Reports on behavior modification

The LCO recommends requiring mandatory class action outcome reports which include information about behavior modification outcomes (i.e., changes in corporate or government practices or behavior that may be attributable to a class action).


At present, Ontario generally maintains the same two-way 'loser pays' costs rule in class actions as it does in other civil litigation – with a provision permitted lower costs to plaintiffs where a case was brought in the public interest or raises a novel issue. The LCO recommends adopting a modified no-costs system under which there would be no cost awards for certification motions, ancillary motions, and appeals from certification. All other proceedings would have two-way costs applied including motions to strike, jurisdiction disputes, summary judgment motions, motions to de-certify, and trials.


Currently, Ontario is unique among Canadian jurisdictions in having an intermediate appeal level from certification decisions, and asymmetrical certification appeal rights between plaintiffs and defendants. The LCO recommends amending the CPA to provide both parties with a direct right of appeal to the highest level of Ontario appellate court (the Ontario Court of Appeal).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions