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Ontario's new 'defense-friendly' Class Proceedings Act has not deterred would-be representative plaintiffs

In October 2020, the Ontario Class Proceedings Act was amended significantly (the “Amendments”). As discussed in our previous blog post, the Amendments implemented a slate of reforms propounded by defence interests. Some have speculated that this more defence-friendly legislation might encourage plaintiffs to file proposed national class proceedings in other provinces. Now over a year after the Amendments came into force, this post explores the impact of the Amendments on class action practice in the Western provinces.

While it is challenging to determine with certainty the number of class action filings in some provinces, there has been a significant increase in class action filings in British Columbia following the Amendments. As there has not been a similar increase in class action filings in the prairie provinces, if the Amendments are shifting filings, it appears the shift is to British Columbia.

British Columbia

Before the Amendments, in 2019, there were 45 class action filings in British Columbia. As early as May 7, 2021, there was a significant increase in the volume of proposed class action filings in British Columbia. By the end of 2021, there were 74.

However, there are several possible explanations for that significant increase, including the Amendments. Other factors include the change in British Columbia’s auto insurance scheme to a no-fault benefit scheme, which has led a number of counsel from the personal injury bar to branch into plaintiff-side class actions practice, as well as the COVID-19 pandemic, which spawned many different types of class actions.

Alberta, Manitoba and Saskatchewan

Overall, it appears that the prairie provinces have either seen a decrease in class action filings, or have maintained levels as they were before the Amendments. These jurisdictions generally see fewer class action filings than British Columbia and Ontario, and it appears that the Amendments have not correlated with an increase in filings.  

Ontario

While it is not possible to measure with precision, it appears that there has been a decrease in class action filings in Ontario since the Amendments came into force. For example, there were approximately 41 national class actions filed in Ontario in 2019, approximately 51 in 2020, but only approximately 33 in 2021. That may understate the effect of the Amendments as any decrease driven by the Amendments may have been partially offset by new COVID-19 related proceedings. But the Amendments have not ended Ontario class actions practice: a review of prominent plaintiff-side class action websites suggests most firms continue to file national class action lawsuits in Ontario.

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