Access to Justice, Judicial Economy, and Behaviour Modification: Exploring the Goals of Canadian Class Actions

Abstract

The author examines the three goals of class actions in Canada: access to justice, judicial economy, and behaviour modification, with a focus on the preferability inquiry at certification. A comprehensive analysis of the goals is undertaken through an examination of the various law commission reports, critical commentary, and case law from the Supreme Court of Canada and lower courts in every Canadian jurisdiction with class proceedings legislation. While courts and commentators have focused on the economic aspects of access to justice in certification applications, the author advances the position that the definition and use of access to justice needs to be broadened, mainly by considering non-economic factors. The certification stage is vital to access to justice as it can transform claims that are otherwise non-viable (because the cost of litigation exceeds any potential benefits) into aggregate viable claims. Through this transformation, certification breathes new life into substantive rights, something that the author asks the courts to consider when they engage with whether or not to certify a class.