And (Judicially Economical) Justice for All: The Case for Class Proceedings as the Preferable Procedure in Mass Claims for Charter Damages

Abstract: In this article, the author advocates for class proceedings to be presumptively viewed as the preferable procedure for resolving claims of mass or systemic Charter violations. After reviewing the relevant law related to the preferability requirement for class action certification, as well as the jurisprudence surrounding the award of so-called Charter damages pursuant to section 24(1) of the Charter, the author critically examines the few instances where proposed class actions seeking Charter damages have been certified in the hopes of understanding how these actions interact with the factors determining preferability. The author then demonstrates how class proceedings will generally be the forum that best achieves justice for victims of systemic Charter breaches by analyzing such claims through the lens of judicial economy, behaviour modification, and access to justice. Lastly, the author speculates that the use of class proceedings to remedy mass or systemic Charter violations will continue to proliferate as claimants continue to seek efficient and effective ways of obtaining compensation for constitutional wrongs and courts become more accepting of Charter class actions’ role in the judicial landscape.