Canadian class and group actions 2024: frequently asked questions

Actions by representative bodies

Do you have a procedure permitting collective actions by representative bodies (e.g., consumer organizations or interest groups)?

See answer to the question on who can bring forward a proceeding above. In Québec, representative bodies such as consumer protection groups will generally bring class proceedings alongside a “designated person” having personal standing. Option Consommateurs, a non-profit association created to help consumers defend their rights, regularly institutes class proceedings in Québec.

Who is permitted to bring such claims (e.g., public authorities, state-appointed ombudsmen or consumer associations)? Must the organization be approved by the state?

See answer to the question on who can bring forward a proceeding above. When brought in Québec, no approval from the government is required.

In what circumstances may representative actions be brought? Is the procedure only available in respect of certain areas of law (e.g., consumer disputes)?

See answer to the question on who can bring forward a proceeding above. The procedure is not restricted to certain areas of law.

What remedies are available where such claims are brought (e.g., injunctive/declaratory relief and/or monetary compensation) and what are the limitations on remedies, if any?

See answer to the question on what remedies are available above. The remedies available under standard civil proceedings in Québec are also available in class proceedings brought by representative bodies.

Court procedures

Is the trial by a judge or a jury?

In Ontario and B.C., there is no express prohibition against a trial by a jury, where otherwise available under the rules of court. In Québec, all class proceedings are tried by a judge only.

How are the proceedings managed (e.g., are they dealt with by specialist courts/judges)? Is a specialist judge appointed to manage the procedural aspects and/or hear the case?

In Ontario and Québec, special case management judges are assigned to manage and hear all the procedural aspects of class proceeding matters up to trial. In B.C., the court has procedures for requesting the assignment of a case-management judge for a proposed class proceeding, although these judges are not necessarily specialized class proceedings judges.

As stated in the opening question of this article, the Federal Court of Canada has jurisdiction over class proceedings in certain areas of law falling within the Federal Court’s jurisdiction, including class proceedings against the Government of Canada and/or federal ministries or agencies.

How is the group or class of claims defined (e.g., by certification of a class)? Can the court impose a “cut-off” date by which claimants must join the litigation?

The class is defined in the certification order in Ontario and B.C., and in the authorization judgment in Québec.

A class must be defined by objective criteria, rationally connected to the common issues and causes of action, and sufficiently narrow, so that it is not unbounded or unnecessarily broad (Atlantic Lottery Corp. Inc. v Babstock, 2020 SCC 19 at para. 141).

Do the courts commonly select “test” or ‘model” cases and try all issues of law and fact in those cases, or do they determine generic or preliminary issues of law or fact, or are both approaches available? If the court can determine preliminary issues, do such issues relate only to matters of law or can they relate to issues of fact as well, and if there is trial by jury, by whom are preliminary issues decided? If a judge determines certain preliminary factual issues, are those factual determinations binding on a later jury?

There is no selection of class proceedings cases as “test” or “model” cases by the courts in Ontario, B.C., or Québec.

Preliminary issues of fact, law or both may be determined both prior to and after certification/authorization. In Ontario, there is a presumptive right to have pre-certification motions that can arguably dispose of the proceeding in whole or in part, or can narrow the issues or the evidence, heard and decided before certification (ON CPA, s. 4.1). While not set out in the B.C. CPA, the common law in B.C. similarly allows for pre-certification motions that may dispose of all or part of the proceeding to be heard prior to or concurrently with the certification motion (British Columbia v. The Jean Coutu Group (PJC) Inc., 2021 BCCA 219).

In Québec, unless related to the jurisdiction of the court, preliminary motions to dispose of the proceeding may only be heard after authorization. Summary judgment procedure does not exist in Québec.

Are any other case management procedures typically used in the context of class/group litigation?

The ON CPA contains a mandatory dismissal for delay provision if certain procedural steps are not taken by the representative plaintiff within one year of the commencement of a proposed class proceeding (s. 29.1). However, the court in Ontario has held that it has discretion to set aside the dismissal and resurrect a proposed class proceeding (D’Haene v. BMW Canada Inc., 2022 ONSC 5973).

In Québec, defendants must ask and obtain leave from the court to file evidence to contest authorization (CCP, art. 574). Prior to authorization, they must also obtain leave to examine the proposed class members’ representative. The court, exercising its discretion, will grant leave if it considers that such evidence and/or examination is relevant to the analysis of the class proceeding authorization criteria.

Does the court appoint experts to assist it in considering technical issues and, if not, may the parties present expert evidence? Are there any restrictions on the nature or extent of that evidence?

Expert evidence is permitted at the certification/authorization stage in Ontario, B.C., and Québec.

Pre-authorization in Québec, a plaintiff may file expert evidence, but this is rarely done, as the plaintiff only has a burden of a prima facie demonstration. A defendant must seek and obtain leave to file expert evidence, and courts are increasingly reluctant to grant this leave prior to authorization. While courts can also appoint an expert (CCP, art. 236), this is rare in the class proceedings context.

In Ontario and B.C., the parties may adduce expert evidence at the certification hearing, but that evidence is scrutinized at a lower standard than it will be subject to at trial (Krishnan v. Jamieson Laboratories Inc., 2021 BCSC 1396 at para. 127). The nature and amount of investigation and testing required to provide a basis for a preliminary expert opinion will not be as extensive at certification as would be required for an opinion given at trial (see Farrell v. Attorney General of Canada, 2023 ONSC 1474 at para. 86).

In all provinces, the general rules of court apply with respect to expert evidence at the common issues trial.

Are factual or expert witnesses required to present themselves for pre-trial deposition and are witness statements/expert reports exchanged prior to trial?

Under the Ontario CPA, the parties to a class proceeding have the same rights of discovery as under the rules of court. However, prior to the resolution of the common issues, the court has held that discovery is limited to the common issues.

Further, under the Ontario rules of court, if a representative plaintiff provides evidence by affidavit in support of the certification motion (which is not required in Ontario), the defendant has a right to cross-examine on the affidavit.

In B.C., the CPA requires that the motion for certification be supported by an affidavit setting out the materials facts that are to be relied upon at the certification hearing. Unlike in Ontario, leave from the court must be obtained to cross-examine an affiant in the context of a certification motion.

In Québec, there is no automatic right to examine a representative plaintiff prior to authorization. However, the court has the discretion to allow relevant and appropriate evidence as part of the authorization process, which may include a pre-authorization examination of the plaintiff. If the court allows the filing of an affidavit as appropriate evidence, the right to cross-examine the affiant is not absolute, and, as in B.C., leave is required (Elgadi c. WhatsApp, 2023 QCCS 3181 at para. 24-26, 30-33).

In all provinces, the general rules of court apply with respect to factual and expert witnesses at the common issues trial.

If discovery is permitted, do courts typically phase such discovery, such as bifurcating discovery between class discovery and merits discovery?

In Québec, Ontario and B.C., discovery after certification/authorization is limited to the certified common issues. Leave of the court must be obtained to conduct discovery of non-representative class members, and only after discovery of the representative plaintiff.

What obligations to disclose documentary evidence arise either before court proceedings are commenced or as part of the pre-trial procedures?

In Québec, Ontario and B.C., the general scope of pre-trial documentary discovery in certified/authorized class proceedings is information relevant to the certified common issues on liability.

Québec has more limited discovery obligations than other provinces. Document disclosure is provided only in response to requests for documents, pre-undertakings or undertakings taken during examinations stage.

Can the parties challenge the admissibility of expert testimony prior to or after a determination as to whether a claim can proceed on a class or group basis?

Parties may challenge the admissibility of expert evidence under the common law and the rules of court, both prior to and after a class proceeding is certified/authorized.

How long does it normally take to get to trial?

Time to get to trial varies widely, depending on whether or not there are pre-certification/authorization motions and appeals, as well as on the complexity of the case, the number of the parties involved, etc. Additionally, Canada is currently experiencing a high number of judicial vacancies in the superior and appeal courts across the country. Because of this shortage of judges, it is not uncommon for a class proceeding to take several years to reach the trial phase.

What appeal options are available, including whether an appeal can be taken immediately of a decision certifying a class or entering a group litigation order?

In Ontario and B.C., both parties may appeal to the respective Courts of Appeal from an order certifying or refusing to certify a class proceeding, or from a common issues judgment or aggregate damages award. If the representative plaintiff does not appeal an order refusing certification, or abandons an appeal, another class member may make a motion for leave to act as the class representative for the purposes of appeal. The ON CPA and B.C. CPAalso each set the routes of appeal from the determination of individual claims made under the class proceeding.

In Québec, the appeal of a judgment refusing to grant authorization is as of right, while defendants must obtain leave from a judge of the Court of Appeal to appeal from a judgment granting authorization (CCP, art. 578). Such leave is rarely granted. The appeal of a judgment disposing of a class proceeding on the merits is also as of right (CCP, art. 602). Because the litigation value of class proceedings almost always exceeds the monetary value threshold required for an appeal as of right, a trial judgment in favour of the plaintiff can usually also be appealed without leave.

Time limits

Are there any time limits on bringing or issuing court proceedings?

Yes, the applicable provincial limitations rules apply to class proceedings. However, the courts in Ontario and B.C. have held that consideration of limitation periods at the certification stage is often premature, and usually best addressed at the individual issues trial stage. In Québec, authorization to institute a class proceeding will be refused if the representative plaintiff’s claim is time-barred.

If so, please explain what these are. Does the age or condition of the claimant affect the calculation of any time limits and does the court have discretion to disapply time limits?

The Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, B.C. Limitation Act, S.B.C. 2012, c. 13, and Civil Code of Québec at art. 2921-2933, set out the substantive rules on the applicable time limitations for bringing or issuing court proceedings where the substantive law of the province governs the claim.

In Ontario, Québec, and B.C., special limitation period rules apply to minors (in Ontario and Québec, persons under 18 years and in B.C., persons under 19 years).

To what extent, if at all, do issues of concealment or fraud affect the running of any time limit?

In Ontario and B.C., the ultimate limitation period (the 15^th anniversary of the day on which the act or omission on which the claim is based took place) does not run during any time in which the alleged wrongdoer willfully conceals the fact that injury, loss or damage has occurred, or willfully misleads the plaintiff as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

In Québec, the limitation period commences on the date on which the plaintiff had sufficient knowledge of all of the elements of the right of action. Therefore, concealment or fraud may affect the starting date of the limitation period.

Does the filing of a class or group lawsuit toll the limitation period by which any individual who falls within that class or group would have to bring their or its own individual claims?

Class proceedings legislation generally state that the filing of a class proceeding suspends any limitation period applicable to a cause of action asserted in favour of a class member. The limitation period will typically resume running if certain events occur, including if the proceeding is not certified. Class members who chose to opt out of a class proceeding and proposed class members who are not included in the defined class cease to benefit from the suspension of limitation periods.

However, it is arguable that the statutory limitation period suspension does not apply to extra-provincial class members, since limitation periods are substantive law and class proceedings legislation are procedural statutes which do not, by themselves, create or modify substantive rights.

Remedies

What types of damage are recoverable (e.g., bodily injury, mental damage, damage to property, economic loss)?

See answer to the question on what remedies are available under the section “Class and group actions” above. Compensatory damages (including for bodily injury, mental injury, damage to property and economic loss), moral damages and non-compensatory damages (including punitive damages, aggravated damages) are recoverable in class proceedings.

Can damages be recovered in respect of the cost of medical monitoring (e.g., covering the cost of investigations or tests) in circumstances where a product has not yet malfunctioned and caused injury, but it may do so in future?

No. The courts in B.C. and Ontario have held that a plaintiff’s claim for future medical monitoring cannot be certified, based on the exclusionary principle that claims for contingent, future pure economic loss are contingent and speculative and cannot be included in a class proceeding claim. Claims for past expenses and losses may be recoverable. These damages have also never been awarded in Québec.

Are punitive damages recoverable? If so, are there any restrictions?

Yes. A claim for punitive damages may be advanced and certified as a common issue. In Ontario, the case law is divided on whether punitive damages can be certified as a common issue where the compensatory amount (requiring findings of causation) can only be determined after the individual assessment phase. In B.C., it has been found that a claim of punitive damages may be certified as a common issue, but quantification of punitive damages must be deferred until the conclusion of individual trials.

In Québec, a claim for punitive damages is available only if provided for in a specific statute (Civil Code of Québec, art. 1621). Punitive damages are generally sought in consumer rights and human rights class proceedings.

Is there a maximum limit on the damages recoverable from one defendant (e.g., for a series of claims arising from one product/incident or accident)?

No. The Supreme Court of Canada in Andrews v. Grand & Toy Alberta, [1978] 2 S.C.R. 229 set a rough upper limit for general damages (e.g., for pain and suffering, loss of amenities, loss of expectation of life) at $100,000, adjusted for inflation. As of 2023, the upper limit is approximately $420,145. Compensatory damages are not subject to this limit.

How are damages quantified? Are they divided amongst the members of the class/group and, if so, on what basis?

Under the ON CPA and B.C. CPA, the court may make an aggregate damage award in respect of all or any part of a defendant’s liability to class members. An aggregate award may only be made if: 1) monetary relief is claimed on behalf of some or all class members; 2) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined; and 3) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

In Québec, the quantum of damages is determined by the Court based on the evidence, including expert evidence. If the total claim amount can be determined precisely based on the evidence, the Court will order collective recovery of the class members’ claims (CCP, art. 595). If the existence and the quantum of damages cannot be established collectively, the class members’ claims will be recovered individually.

In Ontario, B.C. and Québec, the court may order that an aggregate award be applied to class members on an average or proportional basis, or divided among individual class members. The court has broad powers to direct any means of distribution of aggregate awards that it considers appropriate.

When aggregate or collective recovery is not possible, individual trials may be held to assess individual damages, as well as other individual issues, such as causation, required to establish liability.

Do special rules apply to the settlement of claims/proceedings (e.g., is court approval required)? If so, what are those rules?

Yes. Any settlement of a class proceeding must be approved by the court. A court-approved settlement is binding on all class members who did not opt out. A settlement must be fair, reasonable, and in the best interests of the class members.

The Ontario CPA and Québec CCPset the evidentiary requirements that must be satisfied on a motion for approval of a settlement, including a plan for allocating and distributing the settlement funds.

Costs

Can the successful party recover a) court fees or other incidental expenses, and/or b) their own legal costs of bringing the proceedings from the losing party? Does the “loser pays” rule apply?

In Ontario, the general rule that costs follow the event (i.e., “loser pays” model) applies to class proceedings. The ON CPA also allows the court in exercising its discretion with respect to costs, to consider whether the proceeding was a test case, raised a novel point of law, or involved a matter of public interest. While Québec follows a “loser pays” model for court costs, except for exceptional circumstances (such as abuse of procedure), cost awards in Québec do not include lawyers’ fees (QC CCP, art. 340-342).

B.C. adopts a “no costs” regime for class proceedings. No costs may be awarded to either party in relation to an application for class certification or any other stage of a class proceeding, including appeals at any stage, barring certain circumstances.

How are the costs of litigation shared amongst the members of the group/class? How are the costs common to all claims involved in the action (“common costs”) and the costs attributable to each individual claim (“individual costs”) allocated?

In B.C., and Ontario, no class member other than the representative plaintiff may be liable for costs, except with respect to the determination of their own individual claims. In Québec, other class members are not required to pay any costs arising from the class proceeding. It is common for class counsel to provide indemnification protection to the class representative from an adverse costs award in a contingency fee agreement. The court must approve an agreement respecting fees and disbursement between class counsel and a class representative.

What are the costs consequences, if any, where a member of the group/class discontinues their claim before the conclusion of the group/class action?

Despite the “no costs” regime for class proceedings in B.C., an adverse cost award may apply if a proceeding is discontinued prior to the certification hearing under the court’s ordinary discretion.

In Ontario, the court may decide to award costs in respect of a discontinued class proceeding, whether or not it has been certified.

In Québec, except certain statutory exceptions, discontinuance by a plaintiff needs to be authorized by the court and will usually be on a without costs basis.

Do the courts manage the costs incurred by the parties (e.g., by limiting the amount of costs recoverable or by imposing a “cap” on costs)? Are costs assessed by the court during and/or at the end of the proceedings?

Generally, costs are assessed by the court at the end of the proceedings.

In Ontario and B.C., the court must approve an agreement respecting fees and disbursements between class counsel and a representative plaintiff. The ON CPA states that a court shall not approve an agreement unless it determines that the fees and disbursements required to be paid are fair and reasonable. If an agreement is not approved by the court, then the court may determine the amount of fees and disbursements owing to class counsel.

In Québec (where cost awards generally do not include lawyer’s fees), there is no cap on costs. The party entitled to costs must prepare a bill of costs based on the tariffs in force at the time (CCP, art. 344).

Funding

Is public funding (e.g., legal aid) available?

Yes, in Ontario and Québec. In Ontario, the Class Proceedings Fund (Fund) was established by the Board of Trustees of the Law Foundation of Ontario (LFO) to provide financial support to approved class proceeding plaintiffs for legal disbursements and indemnifies plaintiffs for costs that may be awarded against them in funded proceedings. In Québec, the Fonds d’aide aux actions collective (FAAC) is the public agency providing financial assistance to persons wishing to bring a class proceeding and to disseminate information about bringing class proceedings.

If so, are there any restrictions on the availability of public funding?

A plaintiff must apply to the LFO and make an application for funding at each stage of the proceeding. Other information must be provided to the Committee, such as a legal opinion assessing the case and a plan for conduct of the proceeding. The Fund does not pay counsel fees.

Requests for public funding from the FAAC must be made in writing and must describe certain elements of the claim. The public funding granted by the FAAC is not insignificant, and can be used to pay legal costs and class counsel fees, but will not usually cover all costs and fees necessary to bring a class proceeding to trial. Financial assistance is not available to legal persons established for a private interest, partnership or association or other group not endowed with juridical personality, with some exceptions.

Is funding allowed through conditional or contingency fees and, if so, on what conditions?

Yes. A contingency fee agreement must be approved by the court in Québec, Ontario, and B.C. but is presumptively valid and enforceable if fully understood and accepted by the representative plaintiff. If the court considers the fees charged by counsel unreasonable and not in the interests of the class, the court may set an appropriate fee.

In Québec, regardless of whether it provided public funding, the FAAC can make representations on class counsel fees and regarding payments to third parties if a balance remains following the liquidation of claims.

Is third-party funding of claims permitted and, if so, on what basis may funding be provided?

Yes. In B.C. and Ontario, third-party funding of class proceedings must be disclosed and approved by the court. In Québec, third-party funding arrangements do not need to be disclosed and are less common. The ON CPA sets the requirements for approval of third-party funding agreements, including that the agreement is fair and reasonable.

Other mechanisms

Can consumers’ claims be assigned to a consumer association or representative body and brought by that body? If so, please outline the procedure.

No, they cannot.

Can consumers’ claims be brought by a professional commercial claimant which purchases the rights to individual claims in return for a share of the proceeds of the action? If so, please outline the procedure.

No, they cannot.

Can criminal proceedings be used as a means of pursuing civil damages claims on behalf of a group or class?

No, they cannot.

Are alternative methods of dispute resolution available (e.g., can the matter be referred to an Ombudsperson)? Is mediation or arbitration available?

Yes, mediation and other alternative dispute resolution mechanisms are available in class proceedings. In B.C., a proceeding commenced under the CPA is subject to the mandatory mediation process under the Notice to Mediate Regulation, whether or not it is yet certified. In Québec, the parties may submit the matter to a judge-supervised settlement conference.

Are statutory compensation schemes available (e.g., for small claims)?

In certain specific instances, as provided by statute. In B.C. and Ontario, in considering whether a class proceeding is a preferable procedure under the certification criteria, a court may look at alternative statutory remedies or compensation funds.

What remedies are available where such alternative mechanisms are pursued (e.g., injunctive/declaratory relief and/or monetary compensation)?

Parties have flexibility when settling a proceeding using alternative dispute resolution mechanisms. Often, parties agreed to the creation of a settlement fund or a settlement mechanism. No matter the format, any settlement agreement will have to be approved by the court and determined to be fair, reasonable and in the best interests of the class.