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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 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.