Human Resources Legislative Update
Changes Are Coming to the Justice System in Ontario
Date: December 23, 2019
On December 9, 2019, the Ontario government tabled Bill 161, Smarter and Stronger Justice Act, 2019, omnibus legislation that, if passed, would enact significant changes to the justice system through amendments to numerous statutes. Set out below is a brief summary of the notable changes to the Class Proceedings Act, 1992, the Courts of Justice Act and the Judicial Review Procedure Act.
Class Proceedings Act, 1992 (CPA)
If passed, Bill 161 would make significant amendments to the CPA, including:
- Dismissals for Delay. Proposed class proceedings would be dismissed for delay within one year of the Statement of Claim being filed unless:
- the representative plaintiff has filed their motion record
- the parties have agreed to a timetable for filing their certification motion,
- the court has ordered the proceedings not be dismissed and have established a timetable, or
- any other steps specified by the regulations have taken place.
- Carriage Motions. Among other things, carriage motions would be required to be brought within 60 days of the issuance of the first action; they would be final and could not be appealed; and carriage motion costs could not be recouped by class counsel.
- Notice. There are several changes respecting the requirement of notices under the CPA, including that notices be written in English and French and in a plain language manner.
- Costs of Notice. The award of the payment of costs of notice to a representative plaintiff could be made but only in the event of the success in the class proceeding.
- Preferable Procedure. Changes to the preferability analysis would be made, such that a class action would be the preferable procedure if at a minimum:
- it is superior to all reasonable available means of determining the entitlement of the class members to relief; and
- the question of fact or law in common to all class members predominate over any questions affecting only individual class members.
- Multijurisdictional Issues. A procedure to deal with the multijurisdictional coordination of class actions across provinces would be created.
- Settlement Approval. Among other things, the courts would be provided with specific guidance on what to assess when approving settlements.
- Cy-Près Orders. The distribution of settlement funds on a cy-près basis would be addressed, including when the court may make an order authorizing such distribution and specifying to whom the distribution may be made.
- Subrogated Claims. Requirements would be established for a proceeding under the CPA which includes or may include a subrogated claim.
- Appeal Process. Defendants would be able to appeal any decision on a certification motion directly to the Court of Appeal.
- Third Party Funding. Several changes to third party funding arrangements would be made, with such arrangements being subject to court approval.
Courts of Justice Act (CJA)
The Bill would amend the CJA to eliminate, as applicable, entitlement to compensation for any legal costs incurred by deputy judges and case management masters who are removed from office following a complaint, and by provincial judges for whom the Judicial Council recommends removal from office following a complaint.
Judicial Review Procedure Act (JRPA)
The Bill would amend the JRPA to:
- provide the courts with a generally applicable power to refuse to grant any relief on a judicial review application
- require judicial review applications to be brought within 30 days after the date the decision or matter for which review is sought was rendered (unless another Act provides otherwise), subject to the ability of the court to extend the deadline where it considers it proper to do so.
