Palpable and Overriding Confusion: Appellate Review of Certification Orders in Canada

The struggle for certification in Canadian class actions is the centrepiece of a procedural mechanism designed to bridge a significant chasm of access to justice for a broad range of claims that would otherwise not reach the courts or would do so in a diminished capacity. Certification is of such significance that appeal of an order granting or denying certification is almost inevitable in every class action that comes before the courts. However, the law in Canada is decidedly muddled when it comes to delineating the underlying nature of a certification order, and it is not clear at what point appellate intervention in a certification order constitutes interference with case management and in what instances it is an appropriate correction of a legal error. The question remains: what is the appropriate role for appellate courts in the certification process? Both the provincial legislatures and courts across the country disagree on this point and as a result have created a confusing patchwork of rules respecting appellate review of certification orders. This paper will examine how and why the law of appellate review of certification orders is so confused across the country and offer a practical solution for reform that is consistent with both the theory and the reality of class actions.