Abstract: Access to justice is a critical problem facing Canadian courts. To address access to justice issues in the civil context, legislatures created both the class action procedure within the courts and administrative schemes as alternatives to the courts. Despite their shared access to justice goals, administrative law principles prevent class actions from being advanced in areas that are governed by an administrative scheme. This paper explores the practical effect of this jurisdictional conflict by comparing the relative benefits of class actions to statutory dispute resolution processes. In cases where jurisdictional conflicts arise, the prospective class members who suffer the most when a claim is diverted to an administrative scheme are those who require provisions such as contingency fee arrangements, a representative plaintiff, and the protections afforded by the judicial oversight of litigation. I suggest that the legislature could further the access to justice and judicial economy objectives of both class proceedings and these administrative schemes by incorporating these provisions into administrative schemes, or by allowing the superior court to assume jurisdiction of mass claims in appropriate circumstances.
Helene Love (Tue,) studied this question.