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“Class Roots: the Genesis of the Ontario Class Proceedings Act, 1966-1993”

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“Class Roots: the Genesis of the Ontario Class Proceedings Act, 1966-1993” CORE Metadata, citation and similar papers at core.ac.uk Provided by YorkSpace “Class Roots: The Genesis of the Ontario Class Proceedings Act, 1966-1993” Suzanne Chiodo A Thesis Submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Master of Laws Graduate Program in Law, York University, Toronto, Ontario November 2016 © Suzanne Chiodo, 2016 Abstract Nearly 25 years since its passage, the Ontario Class Proceedings Act has become one of the most frequently debated procedural mechanisms of its kind. The CPA came about following the release of the Attorney General’s Advisory Committee (AGAC) Report in 1990. None of the current narratives explain how this Report pulled together so many divergent interests where previous attempts had failed. My thesis answers this question with reference to the historical sources and the legal, political and social changes that took place throughout this period. This thesis also highlights the unique nature of the AGAC consultation process, which saw the negotiation of a consensus between the parties and the subsequent drafting of legislation. Although this process was effective, however, it led to compromises and a lack of democratic oversight that continue to affect the CPA and its goals of access to justice to this day. ii Table of Contents ABSTRACT II TABLE OF CONTENTS III CHAPTER 1: INTRODUCTION 1 A. OVERVIEW 1 B. WHY A HISTORICAL STUDY OF THE CPA? 4 C. LITERATURE REVIEW 7 D. METHODOLOGY 13 E. TERMINOLOGY 14 F. SCOPE AND STRUCTURE 17 CHAPTER 2: CLASS ACTIONS IN ENGLAND, NORTH AMERICA, AUSTRALIA 19 A. REPRESENTATIVE PROCEEDINGS IN EQUITY AND ENGLISH LAW 19 B. CLASS ACTIONS IN THE UNITED STATES 24 C. ONTARIO IN THE 1970S: THE PRECURSOR TO REFORM 29 D. DEVELOPMENTS IN OTHER JURISDICTIONS 35 I) NEW BRUNSWICK 35 II) BRITISH COLUMBIA 36 III) SASKATCHEWAN 37 IV) AUSTRALIA 38 V) QUÉBEC 41 E. CONCLUSION 45 CHAPTER 3: THE EARLY CAMPAIGN FOR REFORM AND THE OLRC REPORT 47 A. THE FIGHT FOR CONSUMER RIGHTS 48 B. ENVIRONMENTAL RIGHTS AND STANDING 50 C. CLASS ACTIONS AND THE COMBINES INVESTIGATION ACT 54 D. THE REPORT OF THE WILLISTON COMMITTEE 61 E. PRIVATE MEMBERS’ BILLS ON CLASS ACTIONS 62 F. CLASS ACTIONS LEGISLATION IN QUÉBEC 63 G. THE DEBATE ON CONTINGENCY FEES 64 H. THE CHARTER AND ITS IMPACT ON LEGAL CULTURE 66 I. THE OLRC REPORT 68 J. NAKEN AND THE SUPREME COURT OF CANADA 77 K. CONCLUSION 82 CHAPTER 4: THE REPORT OF THE ATTORNEY GENERAL’S ADVISORY COMMITTEE ON CLASS ACTION REFORM (1985-1993) 84 A. IAN SCOTT’S EARLY YEARS AS ATTORNEY GENERAL (1985-1988) 84 B. PREPARING THE WAY FOR REFORM 93 C. INITIAL CONSULTATIONS (1988-1989) 97 D. BUILDING THE ATTORNEY GENERAL’S ADVISORY COMMITTEE 104 E. THE REPORT OF THE ATTORNEY GENERAL’S ADVISORY COMMITTEE 119 iii F. DRAFTING THE LEGISLATION 131 G. RE-INTRODUCTION OF THE CPA 140 H. CONCLUSION 154 CHAPTER 5: CONCLUSION 159 A. WIDER SOCIAL AND CULTURAL CONTEXT 159 B. THE CONSULTATION PROCESS 161 C. THE RECOMMENDATIONS 165 D. POLITICAL WILL 167 E. FLAWS IN THE ADVISORY COMMITTEE PROCESS 170 F. COMPROMISES MADE IN THE ADVISORY COMMITTEE PROCESS 173 G. CONCLUSION 175 BIBLIOGRAPHY 177 iv Chapter 1 Introduction A. Overview On June 24, 1982, Attorney General Roy McMurtry announced to the Ontario legislature1 that the Ontario Law Reform Commission had completed its Report on Class Actions.2 The result of six years of deliberation and running to nearly 900 pages, the OLRC Report was widely hailed as one of the most comprehensive treatments of the subject, covering almost every aspect of class actions in exhaustive detail. It was accompanied by draft legislation and had been especially commissioned by the Attorney General, with McMurtry stating the following year that he regarded class action reform as “a high priority. I would expect to be discussing these issues … with my cabinet colleagues in the early autumn, with a view to possibly bringing first reading legislation before the House by the end of the year.”3 The draft Act was never passed. The OLRC Report gathered dust on the shelves of the Ministry of the Attorney General for more than five years, while the Conservative government was voted out of power and a minority Liberal government took its place, continuing the reformist agenda initiated by the 1985 Liberal-NDP accord once it won a majority in 1987. While certain interest groups made submissions to the Ministry on the OLRC Report and class actions, virtually no steps were taken towards reform. Then, in 1988 and with the strong backing of a Liberal government, Attorney General Ian Scott turned his activist eye towards class actions. Focused on the subject of access to justice, Scott saw class actions as a way of securing justice for consumers, environmental groups 1 Ontario, Legislative Assembly, Official Report of Debates (Hansard), 32nd Parl, 2nd Sess (June 24, 1982) (Roy McMurtry), online: <http://www.olip.ontla.on.ca/hansardeissue/32-2/l087.htm> [Hansard, June 24, 1982]. 2 Ontario Law Reform Commission, Report on Class Actions (Toronto: Ministry of the Attorney General, 1982) [OLRC Report]. 3 Ontario, Legislative Assembly, Official Report of Debates (Hansard), 32nd Parl, 3rd Sess (June 17, 1983) (Standing Committee on Administration of Justice, Estimates, Ministry of the Attorney General), J-173, Ontario Law Reform Commission files, Nov 1976 - Dec 1982, Project name: class actions, RG 4-66, BA77, Box No B380537, Archives of Ontario [Hansard June 17]. 1 and others on a mass scale, while levelling the playing field between plaintiffs and powerful defendants. Ready to help him was Michael Cochrane, an ambitious young lawyer who had joined the Policy Development Division of the Ministry of the Attorney General just weeks before Scott was appointed. The OLRC Report was just one of a number of projects that had been idling at the PDD, and Cochrane volunteered to dust it off and move it forward.4 Together, the two men were to create a unique consultation process that saw key stakeholders from business, the legal profession, consumer groups and environmental organizations gathered together in a mediation-style process. This process involved a political commitment to undertake reform; a commitment by the group to reach a consensus, or there would be no legislation at all; a public and up-front commitment by the participants to several written terms of reference, which were non- negotiable and around which the legislation would be designed; and a willingness to discuss interests and goals, rather than lock into particular positions.5 Trained as a mediator, Michael Cochrane chaired the Attorney General’s Advisory Committee on Class Action Reform and successfully negotiated a compromise between the vastly differing viewpoints at the table.6 The resulting consensus on such a controversial topic was a surprise to everyone, including Premier David Peterson.7 However, it was not without compromise. The OLRC Report had called for various mechanisms to level the playing field for plaintiffs and remove procedural and substantive barriers to class actions. In particular, it recommended that traditional costs rules (“two-way” costs, where the losing party paid the successful party’s legal costs) should not apply to class actions. Instead, each party should pay its own costs, no matter 4 Interview with Michael Cochrane, June 28, 2016 [Cochrane Interview 2]. 5 MG Cochrane, “The Process of Principled Negotiation of Public Policy: An Overview” (unpublished, on file with the author) at 5-8 [Cochrane Principled Negotiation]. This approach borrows from the Principled Negotiation approach developed by Roger Fisher et al in Getting to Yes: Negotiating Agreement Without Giving In, 2nd ed (New York: Penguin Books USA, 1991). There is some overlap between Cochrane’s paper and the principles outlined in Getting to Yes, including focusing on interests, not positions; and insisting on objective criteria for negotiation. These principles were based on the work of the Harvard Negotiation Project, and taught as part of the Project’s Program of Instruction for Lawyers (see notes in Getting to Yes). Cochrane was almost certainly exposed to these principles when he took part in negotiation training at Harvard in 1989. 6 Ministry of the Attorney General (MAG), Policy Development Division, Report of the Attorney General’s Advisory Committee on Class Action Reform (Toronto: Ministry of the Attorney General, 1990) [AGAC Report or Advisory Committee Report]. 7 Interview with Michael Cochrane, April 21, 2016 [Cochrane Interview 1]. 2 which party was successful (the “no-way costs” rule).8 Cochrane and Scott had originally proposed the same costs mechanism, and it was one of the Cabinet-approved terms of reference for the work of the Advisory Committee. However, it quietly fell to the wayside, as the business groups asserted their position that class actions should depart as little as possible from the traditional rules of litigation: for them, it was either traditional costs rules or no class actions at all. The no-way costs rule was one of the casualties of the compromise struck by the Advisory Committee, and the decision not to include it has been questioned by class actions lawyers to this day.9 In addition, the consultation process led to compromises not only in the shape of reform itself, but also in the process by which the legislation was created. Some on the Advisory Committee – and also those who had not been invited to participate – questioned a process that only invited certain parties to the table, leaving other major stakeholders such as women’s groups out in the cold. The members of the Advisory Committee worked long and hard to agree to a compromise, and were justifiably proud of the consensus that resulted. Unfortunately, that pride took a proprietary turn in that they were unwilling to allow legislative counsel a free hand in drafting the statute.
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