Bill 161 Update

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Bill 161 Update

Written By: Jordan Assaraf, Personal Injury Lawyer

Bill 161, known as the Smarter and Stronger Justice Act, 2020, became law on July 8, 2020, when it received Royal Assent. It may be some time before most Ontarians notice the changes it will bring to our legal system, but they may not like all of what they see.

In this blog, I will be highlighting the class proceedings aspects of Bill 161 and explain what has changed since it was first introduced in the Ontario Assembly in late 2019.

Long-Awaited Modernization

Bill 161 makes the first significant changes to the Class Proceedings Act since it was first enacted more than 25 years ago. It also amends almost 20 other statutes to reflect the government’s other civil justice reforms, including controversial alterations to the legal aid mandate, the introduction of online notaries and commissioners, and other changes.

Many of the Bill’s amendments reflect the recommendations made by the Law Commission of Ontario, following its exhaustive review of the Class Proceedings Act in 2019. Key recommendations adopted by the legislation included:

– the ability to bring a motion to dismiss a “dormant” class proceeding (to expedite the process);
– procedural changes for carriage motions (similar class proceedings will not be permitted after 60 days of the first proposed class)
– amendments to motions before certification (more significant use of these motions, including summary judgments);
– alterations to costs of certification notices (plaintiffs will be initially responsible for these costs, but can recover them in the event of a favourable judgment);
– changes to data collection (to better co-ordinate cases in multiple jurisdictions);
– court-approved settlements (explicit court direction of specific requirements);
– more routes of appeal (both defendants and plaintiffs will have an automatic right to appeal); and,
– changes to third-party funding agreements (must be explicitly approved by a court).

While many of the changes to civil procedures are positive, neutral or fairly uncontroversial, Bill 161 received much criticism from parts of the legal community and broader community for other changes that were initially considered, but later ruled out, by the Law Commission of Ontario.

Making It Harder To Sue

The legislation changes the certification test for class action proceedings by introducing the concepts of predominance and superiority in determining whether a class action is the “preferable procedure”. When testing predominance, courts could opt to decline a class action from proceeding if individual issues would predominate over common issues.

For example, in a personal injury class action case, if the nature of injuries among members of the proposed class differed significantly, or potential damages varied substantially, the court might refuse to certify the action. When assessing the viability of a class action over another type of procedure, the court must find it “is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant”.

Although British Columbia’s civil procedure legislation has already employed similar concepts and courts have interpreted them favourably for plaintiffs, the (metaphorical) jury is still out on how Ontario’s courts will consider them.

What’s Changed Since Bill 161 Was First Introduced?

In short, not much. Testimony from witnesses before the Standing Committee on Justice Policy expressed serious concerns about how the “preferable procedure” clauses could limit consumers’ ability and vulnerable groups’ to access justice. However, most of the Bill’s amendments remained unchanged and only slightly altered in wording for technical clarity. Only two provisions relating to costs of notice and timing of settlement motions were substantively revised.

What Does It Mean For You?

The vast majority of the changes in the Smarter and Stronger Justice Act, 2020, only apply to future actions. If you’re part of an existing class action suit, you should not worry that any of these potentially adverse changes will affect your case.

As new actions commence, we’ll begin to see how Ontario courts have responded to this significant piece of legislation. Rest assured that as a firm committed to full-circle care, Gluckstein Lawyers will be at the forefront in protecting the rights of victims of personal injuries in their quest for justice. If you are concerned about how this new law may affect your potential class action case or claim, please contact me at [email protected].

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