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Class counsel fees and their relationship to class member compensation are among the most important – and most controversial – statistics used to evaluate the normative outcomes of the class action mechanism. The perception that class attorneys reap windfall rewards while the class ‘gets nothing’ is persistent among class action critics. The ratio of legal fees to settlement funds captures the critical trade-off between counsels’ entrepreneurial incentives to pursue lucrative claims and the agency challenges endemic to these proceedings. The authors’ analysis uses new data and novel econometric methods to explore the nature of class action fee ratios in Ontario for both economics and legal audiences. To start, we calculate “all-in” fee ratios -- lawyer fees plus disbursements divided by settlement amounts in Ontario -- of 25.0% on average and at the median. Next, we show that judges are sensitive to windfall gains and sweetheart deals, problems associated with large awards, and adjust fees based on settlement size. These data and estimates contribute to a better understanding of judicial economy and access to justice in practice, the principal arguments in favour of class proceedings.

There has been a proliferation of writing about commercial litigation funding (“CLF”) over the past few years, in both the academic and popular press. Too often, the literature presents a narrative of extremes. Commentators are either wholly against CLF on the basis that it gives rise to unethical behaviour and the commodification of our civil justice system, or wholly in support of it on the basis that it promotes access to justice and levels the playing field. A conference held at the University of Windsor Law School in July, 2013 brought together leading scholars, judges and lawyers from the United States, Australia and Canada to engage in a nuanced discussion about CLF that mediated between these extreme polarities. The first conference of its kind in Canada, discussion was focused on four themes: regulation, access to justice, ethics and impacts on class actions. In this article, the conference organizers, Dean Camille Cameron and Professor Jasminka Kalajdzic, survey the principal issues in the debates around CLF, summarize the key points in the conference papers, and identify the basic principles that might inform the regulation of litigation funding in Canada and elsewhere.

The most controversial of the recent amendments to Ontario’s Class Proceedings Act is the addition of two requirements to the certification test: to meet the preferable procedure criterion, s. 5(1.1) requires that common issues in the litigation must now “predominate” over individual issues, and a class action must be “superior” to all other forms of resolution. The importance of the interpretation of Ontario’s new certification test to the continued viability of class actions in the province merits a thorough and rigorous analysis of s. 5(1.1). The language of predominance and superiority is strikingly similar to requirements that have long applied to US class actions for monetary damages. As courts in Ontario begin to grapple with the new predominance and superiority requirements, however, the authors caution against turning to American jurisprudence for guidance. Several important structural differences between the Ontario and American class action regimes, as well as different constitutional considerations and a variety of approaches within US case law diminish its utility. Instead, the authors examine the history and language of the amendments to propose an interpretation of the predominance and superiority requirements that is informed by Canada’s own procedural and constitutional framework and that avoids the pitfalls of legal transplants.

Government-sponsored gambling is a signficant source of revenue for the Province of Ontario, but it comes at a significant social costs to a vulnerable segment of society. It is estimated that 4.8% of adults who gamble are problem gamblers, but they contribute 35% of Ontario's gaming revenues. Is Ontario responsible at law for harm suffered by problem gamblers in the province's casinos? In this paper, the authors address this question by considering the common law duty of care, particularly in the context of commercial host liability, and its possible extension to the problem gambling context.

"Chapter 7: Economic enablers" published on 27 May 2016 by Edward Elgar Publishing.

Corporate and governmental wrongdoing can affect large numbers of people. Such wrongdoing has an institutional victim as well; mass harm exerts enormous pressure on civil justice systems to provide efficient but fair procedures for redress. In this context, settlement of mass disputes is easily understood as a common good. Yet settlements involving hundreds or thousands of claims, often across jurisdictions, raise concerns about the substantive fairness of the compromise reached by lawyers, and the ability of the court system to ensure meaningful oversight. Unburdening the judicial system of mass claims comes at a price; how much rough justice are we prepared to accept? As the contributions to this book illustrate, the difficulty of balancing these competing interests is ubiquitous. Canadian class action settlement practice is no exception. In this chapter, I first explore the realities of this form of litigation, and to some extent debunk the myth that class actions inevitably result in large monetary settlements. I then turn to a brief discussion of the incentives and disincentives to settle large claims, for both plaintiffs’ lawyers and defendants. In Part III, I describe and critique the judicial framework for the approval of proposed settlements.

While collective redress mechanisms continue to develop in much of Europe and in pockets around the world, the oldest class action regimes are undergoing reform. This contribution explores the state of reform in the first and second generation class action jurisdictions: the United States, Australia, Israel and Canada. Their respective class action procedures are outlined in Sect. 2. Section 3 discusses the reform initiatives of the past 3 years in each of the four countries. In Sect. 4, common areas of concern as well as areas of divergence are explored. Comparing and contrasting these reform efforts illustrates the evolution of class actions in these countries and provides useful insights for those studying and contributing to the development of newer collective redress systems.

As part of an international group of scholars who came together in December 2007 to discuss and debate the use of class actions worldwide, the authors prepared a report on the role of class proceedings in Canada. The original report followed a format designed by the conference organizers and traced the procedural particularities and historical pedigree of class actions in Canada, as well as the general policy rationales and arguments that continue to attend them. Condensed versions of the country reports, including this Canadian report, were published in March 2009.