Supreme Court Of Canada Modifies Preferability Inquiry In Class Proceedings

In a decision that will affect class proceedings throughout Canada, the Supreme Court of Canada today set out a new approach for the certification of class actions. Specifically, the Supreme Court changed the analysis used to determine whether a class proceeding will be the preferable procedure to provide access to justice to class members – for the first time engaging in an explicit cost-benefit analysis of class proceedings versus other avenues for recovery.

Background

The issue of preferability in class proceedings has been a thorny one. That is particularly evident in the unique circumstances of this case, AIC Limited v. Fischer,¹ and reflected in the fact that all four courts that considered this matter took quite different approaches to the preferability analysis.