Your search

In the absence of rules permitting lawyers to charge a contingency fee, complex, expensive litigation on behalf of litigants with small value claims requires external funding. Even where contingency fees are permitted, as is the case in all Canadian jurisdictions and in a handful of EU member states, the possibility of adverse costs and varying levels of risk tolerance and financial capacity among law firms still leave a gap for external funding. Legal expense insurance has had limited success. While the commercial Third Party Litigation Funding (TPLF) industry continues to grow in many EU collective redress regimes, its not-for-profit cousin has received far less attention. Yet, the latest EU Directive envisions the possibility of public funding “to ensure that the costs of the proceedings related to representative actions do not prevent qualified entities from effectively exercising their right to seek [injunctive and redress] measures.” In this brief paper, I aim to contribute to discussions about TPLF in Europe by highlighting a viable alternative to commercial funding entities: not-for-profit litigation funders. In Canada, two such public funders have existed for decades. In the first part of this paper, I explain the purpose of Ontario's Class Proceedings Fund and its historical impetus. I then describe the structure and functioning of the Fund. In the third part of the paper, I explore some of the satellite litigation that has involved the Fund. Finally, I discuss both its successes and its limitations. In the end, the Fund serves both as inspiration and cautionary tale for potential not-for-profit funding entities in EU Member States.

Are existing ethical norms adequate to address the realities of class proceedings? In this paper, I explore the premise that existing ethical rules are effective when applied to the conduct of class action litigation. To do so, I draw upon extensive American literature on the subject, as well as Canadian jurisprudence and original research involving the interview of seven class action judges on questions of class action legal ethics. In Part I, I discuss the peculiar features of class proceedings and how they create unique – or exacerbate existing – challenges to the ethical conduct of litigation. In Part II, I confront the fundamental (and often overlooked) question: who is the client in a class proceeding, to whom ethical duties are owed? Having identified the range of judicial and academic views on the unique dimensions of class actions, I then turn, in Part III, to a discussion of the development of ethical rules that seek to respond to them. In the absence of amendments to formal rules of conduct, what are the sources of class counsel’s role morality? I discuss two: the strictures of class proceedings legislation, and judicial development of rules and guidelines. Throughout the paper, but especially in part III, I rely upon information and frank opinions conveyed to me by the seven judges interviewed for this project in the summer and fall of 2010, and in early 2011. I conclude with proposals for amendment to Ontario’s Rules of Professional Conduct that would more accurately address the realities of this model of litigation, and thereby provide clearer guidance to lawyers, the clients they serve, and the judges who play such a significant role in the cases that those lawyers prosecute.

Increased access to justice is a key objective of class proceedings. Yet there is no consensus on what the term means in the class action context. This paper engages the access to justice paradigm by exploring the settlement approval phase of a class action. In Part A, the author offers a robust definition of access to justice that includes considerations of substantive justice. In Part B, the prevailing approach to the assessment of the fairness of a settlement is critiqued. Two common criteria in the fairness analysis, the presumption of fairness and a lack of objectors, are argued to be unreliable determinants of a just result. In Part C, the author evaluates a particular form of settlement - a cy pres distribution of settlement proceeds to charities. Such settlements, the author concludes, illustrate why current standards for settlement approval must be revisited in order to promote more meaningful access to justice.

This paper was written on the occasion of the 40th anniversary of the Annual Workshop on Commercial and Consumer Law and as a contribution to a collection of retrospective essays in the 50th volume of the Canadian Business Law Journal. In the paper, I reflect briefly on the impact of collective action on consumer access to courts, and the promised guarantee of effective justice. In the first part of the paper, I summarize the results of an empirical study which asked class action lawyers to identify the categories of cases being litigated, including those that come within the rubric of "consumer protection actions." I then examine two of the more significant advances in consumer rights litigation, namely, the development of the waiver of tort doctrine and the widespread rejection of mandatory arbitration clauses in consumer contracts. In the final part of the paper, I discuss two challenges to achieving substantive justice for consumers that have recently become more pronounced: increasing reliance on cy près distribution of settlements, and the effect of adverse costs awards on representative plaintiffs.

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 from mass claims comes at a price; how much rough justice are we prepared to accept?

In his thoughtful paper on the relative advantages and deficiencies of private and public enforcement mechanisms for improving consumer protection, Craig Jones forces us to ask a fundamental question about our choice of legal tools: under what circumstances, if ever, should reliance be placed on public regulatory bodies, and when should the protection of the public be left to private litigation, principally through class actions?

One of the main obstacles in criminal and civil proceedings involving intelligence and executive officials is the objection to disclosure of information and evidence on the basis of national security privilege. Known as the "state secrets privilege" in the United States and “public interest immunity” in England, this evidentiary rule has been invoked successfully in an increasing number of cases in the US and England. Indeed, the privilege has been identified as one of the most serious obstacles to effective human rights remedies. In this essay, I discuss the use of national security privilege in civil litigation in the three jurisdictions, focusing specifically on the role the privilege has played in blocking claims by purported torture survivors and other victims of anti-terrorism activities in the US and England. I also evaluate the potential impact of the privilege on a torture survivor’s civil claim, when such a case ultimately goes to trial in Canada. My conclusion, based on the approach courts have taken to the public interest balancing exercise, is that it will be very difficult for private litigants to obtain disclosure of information over which a claim of privilege has been made.

The mass rapes of Bosnian women by Serb soldiers were a tool of war specifically used to systematically drive away women and their communities. This paper examines that phenomenon in light of representations of rape in current literature and the effort to develop a feminist understanding of rape. It considers the feminist debate over whether the mass rapes in Bosnia should be seen as a crime perpetrated against the women as female individuals or against the Bosnian community. The foundation for this examination is a discussion of three normative conceptions which affect international treatment of rape as a war crime - rape as part of the game of war, as an attack on community, and as terrorization and retaliation. The author then documents the exclusion of any conclusive mention of rape from the Hague Conventions (1907) and discusses the repercussions of its eventual definition in the later Geneva Conventions (1949). Finally, the author calls for gender-sensitive approaches to humanitarian assistance, for sensitive treatment of rape survivors, and for the injection of a female voice into humanitarian law.

The recent DRAM settlement in Canada reveals that normative confusion remains about the role of the class action lawyer, the identity of her clients, and the duties owed to them. In this paper, I describe the settlement and in particular, the distribution protocol that gave rise to a legal challenge by five objecting class members. I critique the September 2015 judgment of the court that held human rights legislation is not applicable to class action settlements, and highlight the procedural idiosyncrasies of class actions made evident by the DRAM case, and that have important ramifications for legal ethics. The settlement illustrates the challenges in identifying the content of class counsel's role morality, and may well necessitate a shift in our thinking of what constitutes ethical conduct in the class action context.

In the ubiquitous Hollick decision, the Supreme Court of Canada offered what has become the definitive articulation of the evidentiary burden to be met for an action to be certified as a class proceeding: The plaintiff must show, “some basis in fact,” for each of the certification criteria, other than the criterion that the pleadings disclose a cause of action. Several 2010 certification decisions from three different provinces illustrate the continuing judicial tinkering with the standard of proof to be met on certification. In this brief article, I analyze these three recent decisions, reconcile them with established principles of the law of evidence, and highlight the rapidly widening difference in approaches between Canadian and U.S. certification jurisprudence, including the pending Wal-Mart decision.

The Internal Inquiry into the Actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmatti and Muayyed Nureddin is a particularly pronounced example of the use of secrecy that has defined Canada in the wake of 9/11. Despite having the authority to hold some portions of the Inquiry in public, the Iacobucci Inquiry was conducted almost exclusively in camera and ex parte. The result was an inquiry that was unlike previous commissions called under the federal Inquiries Act.

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 two 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.

The overall objective in the court approval process for class counsel fees is to arrive at a fee that is fair and reasonable. Ontario's courts have developed a number of benchmarks in determining fairness and reasonableness, focusing on the success achieved for the class and the work performed by counsel. In a series of cases released in late 2013, however, one Superior Court judge has posited that success achieved and work performed are either unascertainable or useless factors, and has proposed instead that all counsel be awarded a one-third contingency fee in all class action settlements. In this article, I critique that approach, and argue that it is is inconsistent not only with class proceedings legislation, but also out of step with US trends and with case law regarding contingency fees more generally.

In both the U.S. and Canada, the now common use of cy près in the design of class action settlement distribution plans represents a radical transformation of the original cy près doctrine. Despite the facilitative role of class actions in aggregating claims, in some cases there may be no practical way to calculate or pay hundreds of thousands of small claims. In its current manifestation in class actions, cy près has become the mechanism by which aggregation of loss is effected. Cy près is therefore used not only to dispose of unclaimed settlement funds, but to avoid having class members claim a portion of the settlement at all. In this way, cy pres creates the "illusion of class of compensation” (to borrow Martin Redish's term), because the bulk of the class receives no compensation at all.

Among the casualties in the ‘war on terror’ is the presumption of innocence. It is now known that four Canadians who were the subject of investigation by the RCMP and CSIS were detained and tortured in Syria on the basis of information that originated in and was shared by Canada. None has ever been charged with a crime. On their return home, all four men called for a process that would expose the truth about the role of Canadian agencies in what happened to them, and ultimately help them clear their names and rebuild their lives. To date, in varying degrees, all four men continue to wait for that 'process'. In this paper, I examine the access to justice mechanisms available to persons who are wrongfully accused of being involved in terrorist activities. Utilizing the case study of one of the four men, Abdullah Almalki, I explore the various processes available to him: (i) a complaint to the relevant domestic complaints bodies, the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP; (ii) a commission of inquiry; and (iii) a civil tort claim. Due in large part to the role national security confidentiality plays in these mechanisms, all three models are found to be ineffective for those seeking accountability in the national security context.

Climate justice activists are increasingly looking to litigation to produce the policy changes that have eluded them in the political process. Without a codified right to a clean environment, litigants in jurisdictions like Canada must use a human rights framework to advance their cause. Recent successes in Charter class actions suggest that it is now possible to pursue constitutional damages for climate change harms. As Canadian advocates join with their international counterparts in deploying a litigation strategy, Canada’s robust class action procedure may be a useful addition in the pursuit of collective climate justice. This paper proceeds in four parts. First and by way of background, I summarize the types and extent of climate change litigation in Canada and internationally. Second, I discuss Canadian class actions advancing constitutional claims, which have recently surged after two decades of limited use. In part III, I argue that a climate change action founded on a breach of s. 7 of the Charter would meet the test for certification of a class action. Finally, in part IV I discuss the comparative advantages and disadvantages of using the class action mechanism to combat climate injustice.

"Whatever deficits remain in the Canadian project to make justice available to all, class actions have been heralded as a success. They have been employed over the past twenty-five years to overcome barriers to justice for those who would otherwise have no recourse to the courts. First proposing a conceptualization of access to justice that moves beyond mere access to a court procedure, leading expert Jasminka Kalajdzic then methodically assesses survey data and case studies to determine how class action practice fulfills or falls short of its objectives. Class Actions in Canada is a timely exploration of the evolution of collective litigation in Canada."--