The Limits of Case Management: A Review and Principled Approach to the Court’s General Management Powers

Courts across Canada have been given a broad general management power to address the unique procedural complexities of class actions. Courts have used these powers to make a variety of orders, but seldom with any express linkage to any underlying principles or normative rationale. In this article, we identify some underlying principles and propose a four-step test for when courts should exercise these general management powers. First, the general management power can only be used to make procedural orders. Second, the general management power cannot be used in a manner that conflicts with the class proceedings legislation from which it springs. Third, the general management power can be used to override the normal rules of civil procedure, but only if the divergence can be justified by reference to the unique nature of class actions. Fourth, the court’s discretion should be guided by the effect of an order on the fairness and the efficiency of the proceeding.