The New Preferability Requirements In Ontario's Class Action Legislation: Implications For Private Antitrust/Competition Enforcement

Since the Supreme Court of Canada's 2013 trilogy of decisions in Pro-Sys, Sun-Rype and Infineon, and its 2019 decision in Godfrey, plaintiffs have had considerable success certifying private antitrust/competition class actions in Canada. Recent amendments to Ontario's class action legislation may change that trend. As discussed more fully below, the most significant amendment to Ontario's class action legislation is to the preferable procedure portion of the certification test that currently requires plaintiffs to prove that a class action would be the "preferable procedure for the resolution of the common issues". The preferability requirements now include superiority and predominance elements akin to US Federal Rules 23(b)(3). If interpreted like US Federal Rule 23(b)(3), certification judges will likely engage in a rigorous assessment of whether common questions of law or fact predominate over individual questions, which may, in turn, impair the certification of