Abstract: This paper examines the novel concept of class arbitration in Canada. Given the current fragmented, provincial class actions regime, plaintiffs and defendants face significant barriers in obtaining justice. These obstacles have been compounded by the increase in interprovincial and international class actions. In particular, there are constitutional uncertainties surrounding the certification of national opt-out class actions by provincial superior courts. Moreover, defendants struggle to enforce multijurisdictional class action judgments. Not only does this prevent them from obtaining res judicata, it further reduces judicial economy. Correspondingly, plaintiffs may not be certain whether they are bound by class judgments awarded in other jurisdictions and may have to bring fresh proceedings to recover damages. These challenges undermine the already dire access to justice situation in Canada. This paper argues that class arbitration can address all of these challenges and effectively resolve privacy law disputes, an increasingly litigated area. Notwithstanding these benefits, class arbitration must overcome several hurdles in order to flourish, such as consumer protection legislation and the protection of absent class members’ interests. This paper suggests that class arbitration can overcome judicial opposition to pre-dispute mandatory arbitration clauses, rely upon existing arbitral rules, and protect absent class members’ interests through a combination of high arbitral standards and a system of private enforcement. It therefore argues that class arbitration can and should be embraced in Canada.
Rohan Shah (2019) studied this question.