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ARTICLE · 06 DECEMBER 2023

Ontario Court Applies New Preferable Procedure Analysis For First Time

On October 31, 2023, the Ontario Superior Court of Justice released the first decision on a certification motion to interpret the new preferable procedure analysis.

CanadaLitigation, Mediation & Arbitration

On October 31, 2023, the Ontario Superior Court of Justice released the first decision 1 on a certification motion to interpret the new preferable procedure analysis. This new analysis, as part of the test for class certification, stems from the 2020 amendments to the Class Proceedings Act, 1992 (CPA). Under the new provision, s. 5(1.1) of theCPA, a class proceeding will be the preferable procedure for the resolution of the common issues only if, at a minimum, it is superior to all reasonable alternatives to a class action and the questions of fact or law common to the class members predominate over any questions affecting only individual class members.

The decision establishes that the new emphasis on superiority and predominance under the preferable procedure analysis of s. 5(1)(d) creates a heightened threshold for class certification.

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