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Environmental Class Actions: The Need for Reform in Ontario

In a previous blog, CELA reviewed the public policy basis for enabling people to commence class actions in cases involving widespread harm to the environment or public health.

To date, however, it appears that relatively few environmental class actions have been brought under Ontario’s Class Proceedings Act (CPA) since the legislation was passed over 25 years ago.

To address this and other CPA issues, the Law Commission of Ontario (LCO) has released a consultation paper to solicit public feedback on thirteen key questions about Ontario’s class action regime.

The LCO’s research project is intended to evaluate whether – or to what extent – the CPA is achieving the societal goals of access to justice, judicial economy and behavior modification. In the environmental context, the LCO consultation paper correctly notes that:

In 1982, the Ontario Law Reform Commission reported that environmental class actions were “an obvious means of achieving redress for harm occasioned by pollution.” In practice, however, this has been demonstrated to be less obvious.

In response to the LCO consultation paper, CELA prepared a detailed submission setting out various conclusions about the CPA, including:

  • the extra steps required to commence an Ontario class action (e.g. bringing an upfront motion asking the court to “certify” that the claim can proceed as a class action) have often resulted in significant and costly delays;
  • there is little or no evidence that the CPA has prompted Ontario’s industrial or commercial sectors to improve their environmental behaviour in order to avoid potential civil liability under the Act;
  • the traditional “two-way” cost rule used in class action litigation should be replaced by either a “no cost” rule (each party bears its own costs), or a “one-way” cost rule (the representative plaintiff may recover costs, but cannot be ordered to pay the defendant’s costs);
  • problematic criteria in Ontario’s certification test under section 5 of the CPA (is the proposed class action the “preferable procedure” for resolving “common questions” among class members?) should be modified or deleted in order for the CPA to more closely resemble Quebec’s plaintiff-friendly certification process;
  • the CPA should be amended to specify that at the certification stage, the representative plaintiff should only have to demonstrate his/her case on a prima facie basis, not on a balance of probabilities; and
  • in relation to court decisions denying certification, representative plaintiffs should be able to appeal as of right to the Ontario Court of Appeal, while decisions granting certification should only be appealable to this Court if an appellate judge grants leave (permission) to appeal.

After considering the submissions from CELA and other stakeholders, the LCO expects to release a final report containing its overall findings and recommendations for potential reforms to Ontario’s class action legislation.

Accordingly, CELA views the LCO project as an important opportunity for improving access to environmental justice throughout Ontario.