Access to justice and self-representation in class proceedings | Lawrence David
Tuesday, March 31, 2020 @ 9:06 AM | By Lawrence David
In Ontario, class actions are governed by the Class Proceedings Act, 1992, S.O. 1992, c. 6. The Act is supplemented by the Rules of Civil Procedure, R.R.O., Reg. 194, which provide for the general rules applying to all proceedings in the province.
One key rule has to do with capacity: just who may bring a class action proceeding? Section 2(1) sets the bar fairly low: the plaintiff(s) need only be a member of an identifiable class of persons. If so, the plaintiff may proceed on class members’ behalf and may also be appointed the representative plaintiff (s. 2(2)).
This procedural requirement is uncontroversial. Its application is, in fact, parallel to the rules on private interest standing that preclude an individual from commencing ordinary proceedings on another individual’s behalf. No access to justice issues here.
Rule 15.01 of the Rules of Civil Procedure erects an additional requirement for the bringing of a class proceeding: representation by legal counsel. Rule 15.01 applies to all proceedings in which a party “acts in a representative capacity.” Parties who are “under disability” and corporations must also be represented. Only corporations may seek leave of the court to dispense with this requirement.
Rule 15.01 is problematic on many fronts. First, it conditions the capacity to institute class action proceedings on the ability to afford legal representation. Second is the statutory equivalence made between persons under disability and people who are not represented by counsel. Legal incapacity is typically confined to minors and individuals who are not of sound mind. Not all persons who wish to institute class proceedings without legal representation necessarily fall into this category.
Some litigants may not need legal representation even if they can afford it. They may, for example, be trained in law or otherwise possess a level of sophistication sufficient to enable them to productively participate in the proceedings.
Rule 15.01(1) is, however, inflexible. Even parties represented by counsel pursuant to a limited scope retainer are deemed to be acting in person. Impecunious litigants who can afford some, but not all, legal services, are therefore, further prevented from instituting class action proceedings.
Thirdly, Rule 15.01(2) only permits for the requirement to be waived in respect of corporations. Ironically, corporations are most often the defendants in class action proceedings and rarely have trouble affording legal representation. In theory, then, corporations may more easily bring class actions than persons who cannot afford legal representation.
Rule 15.01’s application to class action proceedings undermines their very purpose of promoting access to justice, judicial economy and behaviour modification.
Concerns that the Rule prevents a floodgate of meritless class proceedings are, moreover, incorrect. A motion contesting the certification of a class action in Ontario is subject to the same threshold as an ordinary motion to strike. In both cases, the defendant must, for example, show that the pleadings fail to disclose a reasonable cause of action or are otherwise frivolous and vexatious.
It is true that individuals can seek funding for class action proceedings from organizations such as the Law Foundation of Ontario. But this is not a panacea. The capacity of individuals to institute class action proceedings should not depend on whether they are able to secure funding from the foundation’s limited annual budget.
More fundamentally, Rule 15.01 may violate s. 96 of the Constitution Act, 1867. Section 96 protects “[t]he right of Canadians to access the superior courts” (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),  S.C.J. No. 59). As a result, denying “the right of Canadians to access courts of superior jurisdiction” may be unconstitutional. In Trial Lawyers, for example, the Supreme Court of Canada struck down regulations imposing hearing fees preventing impecunious litigants from accessing the courts.
The same likely obtains here. Persons who cannot afford legal representation are prevented from bringing class proceedings. Such persons are, therefore, denied access to the courts, at least in some capacity. Individual proceedings remain available, but their effectiveness can scarcely be compared to the class action vehicle.
In some cases, the cost to bring an action outweighs the loss incurred. That is precisely what makes class action proceedings so essential — they permit for the aggregation of injuries that might otherwise go unpunished. This is contrary to the rule of law, which heavily depends on access to justice (Hryniak v. Mauldin  S.C.J. No. 7).
The question for the legal community is: Can the “culture shift” towards access to justice in the 21st century countenance a rule that conditions the bringing of class actions on the ability to afford legal representation? Should that rule be altered to allow for case-by-case exemptions? The courts may soon give us an answer.
Lawrence David is part-time professor of law, criminal law and procedure, University of Ottawa, Faculty of Law — common law section. He can be contacted at firstname.lastname@example.org.
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