Part A - Need for Uniformity or Harmonization
The first issue to be determined is whether class actions legislation is an appropriate topic for the Uniform Law Conference to address. It is the view of the drafters of this paper that this is an appropriate topic, for the reasons that follow.
We would be the first to note that not all aspects of class action legislation need to be uniform from province to province. There are a number of areas where the best approach is to recommend that local procedures be followed. This is particularly appropriate with respect to issues that will be dealt with in Rules of Court. In the interests of making a uniform act "user friendly", however, the drafters suggest that it would be appropriate to insert in square brackets possible options for dealing with these issues. The recommendations that follow the discussion of each of the issues in the paper indicate the circumstances in which "local option" is suggested as the preferred option.
1. Interprovincial Actions
Many class actions deal with situations where the relief sought is the result of mass injuries: mass products liability (urea formaldehyde foam insulation, silicone gel breast implants), mass environmental injury (chemical spills) or mass injury through negligence (airplane crashes, Kansas City skywalk collapse). While some of these claims may arise totally within one province or territory or affect the citizens of only one province or territory, many of them will involve cases that have interprovincial effect. The committee suggests that, in such cases, it is appropriate and desirable for both defendants and class members in the various provinces or territories to have consistent rules across the country.
The proposed British Columbia Act contains provisions dealing with the treatment of non-British Columbia resident plaintiffs, as follows:
16. (2)... a person who is not a resident of British Columbia may, in the manner and within the time specified in the certification order made in respect of a class proceeding, opt in to that class proceeding if the person would be, but for not being a resident of British Columbia, a member of the class involved in the class proceeding.
The Ontario and Quebec laws contain no provisions that specifically address treatment of non-residents. This difference may give rise to uncertainty respecting the position of persons who may qualify as members of more than one class; defendants could be left in the untenable position of having claimants who are class members in more than one class action. It is essential that there be certainty in the description of a class so that defendants can readily ascertain any latent liability they are facing outside the class action.
The report prepared for the Ontario Attorney General by the Advisory Committee on Class Action Reform commented on this issue, as follows:
Mass injury does not always honour provincial or national borders. Where potential class members or defendants reside out of province methods will need to be devised to accommodate the resulting logistical problems. Sub-classing of class members, for example, may address the problem in part. Uniform class procedures in all Canadian provinces would minimize concern over such occurrences. If all injured persons had access to such a procedure then uniformity of access to justice would occur regardless of how or where the mass loss occurred.
The consequences for consumers of this lack of uniformity is illustrated in the silicone gel breast implant cases. The class action that was certified in Alabama excluded from the subclass of "foreign claimants" persons who reside in or had an implant in Ontario, Quebec and Australia because of the ability of those persons to pursue class actions in their own jurisdictions. Canadian residents who reside and received their implant outside Ontario and Quebec are left with the options only of participating in an American class action (and receiving what some have characterized as token damages) or commencing an individual action (which would be extremely expensive).
2. Consistency with the National Conference of Commissioners on Uniform State Laws
In 1976 the National Conference of Commissioners on Uniform State Laws adopted Uniform Class Action legislation. It was revised in 1987 and its name amended to Uniform Law Commissioners' Model Class Action Act. In its Prefatory Note, the Commissioners made the following comment:
A strong need exists for states to adopt a uniform class action act. Many activities have impact on large numbers of persons often from several states. Adoption of a uniform act will assist states in handling multistate class actions, thereby reducing multiplicity of litigation and the chance of inconsistent judgments.
When the Act was amended in 1987 it was noted that the deletion of the jurisdictional and reciprocal provisions of the Act diminished the need for uniformity and therefore the Act was re-titled as "Model". We share their view that uniformity is not essential in all respects; many of our recommendations provide for local practice to be accommodated.
3. Previous Resolutions of the Uniform Law Conference
This topic was first considered by the Conference in 1977. At that time, the Report of the British Columbia Commissioners had this to say:
The fact that class actions may be desirable in cases where a product is consistently defective and where the product is sold from coast to coast and where the purchasers may move from province to province appears to make questions of uniformity of legislation and reciprocity of procedure of paramount importance. 1
The impetus for the 1977 report was the introduction of amendments to the Combines Investigation Act to permit a class action in Federal Court for the recovery of loss or damage suffered as a result of conduct contrary to the Combines Investigation Act.
The Conference adopted the following resolution:
RESOLVED that a committee be established composed of one or more representatives of British Columbia, Ontario and Quebec to be named by the Executive to monitor current studies and legislation and generally to watch developments in the field and to report to the 1978 annual meeting.
A further report was presented to the Conference each ensuing year, reporting on developments in the field.
In 1988 the Ontario Commissioners presented another comprehensive report to the Conference on Class Actions. Following consideration of the report the Conference passed the following resolution:
RESOLVED that the Ontario Commissioners' Report on Class Actions be received and printed in the Proceedings and that the matter be referred back to the Ontario Commissioners for a further report, draft Act and commentaries for discussion in 1989.
No further written materials were provided to the Conference in the succeeding years. The topic was added to the Conference agenda for 1995 at the request of a number of jurisdictions who are interested in having the matter discussed.
*That a Uniform Act be prepared for consideration at the 1996 Conference to deal with the issues mentioned below where uniformity is seen as appropriate. A number of the issues provide more than one option from which jurisdictions can choose the procedural approach that is most consistent with their current legislation and Rules of Court.