Early Disposition or Prejudicial Attrition? An Analysis of Bill 161 and Pre-Certification Dispositive Motions in Class Actions

The number of class actions filed in Canada each year is increasing, and the rate of certification is high. Until recently, certification hearings have been the unequivocal first step in a collective action, subject to the sequencing discretion of the presiding adjudicator. However, the legislative framework governing class actions litigation in Ontario was recently overhauled, with major changes to the Class Proceedings Act coming into force in late 2020. Among these amendments was the addition of an “Early Resolution” provision, which turns the certification-first rule on its head. The newly enacted section 4.1 has the effect of statutorily reversing jurisprudential trends by requiring early dispositive motions to be heard prior to certification and narrowing the broad discretion granted to judges under section 12. In this article, I evaluate section 4.1 by cross-referencing trends in judicial reasoning with the policy arguments of legislators and stakeholders in favour of this provision, as well as nascent jurisprudence from the Ontario Superior Court which attempts to parse section 4.1. This study surveys a total of 104 decisions across nine jurisdictions, decided over the last twenty-one years, where the sequencing of preliminary dispositive motions was at issue. Ultimately, I argue that section 4.1 is based, in part, on rationales that are more cogent in theory than in practice, and that legislators would do well to take heed of judicial trends as practical evidence to inform solutions to systemic concerns. This leaves us with a dramatic shift in Ontario class actions law, predicated on untested rationales rather than existing jurisprudence.