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

The author examines the three goals of class actionsin Canada: access to justice, judicial economy, andbehaviour modification, with a focus on the preferabilityinquiry at certification. A comprehensive analysis of thegoals is undertaken through an examination of thevarious law commission reports, critical commentary,and case law from the Supreme Court of Canada andlower courts in every Canadian jurisdiction with classproceedings legislation. While courts and commentatorshave focused on the economic aspects of access tojustice in certification applications, the author advancesthe position that the definition and use of access tojustice needs to be broadened, mainly by consideringnon-economic factors. The certification stage is vital toaccess to justice as it can transform claims that areotherwise non-viable (because the cost of litigationexceeds any potential benefits) into aggregate viableclaims. Through this transformation, certificationbreathes new life into substantive rights, something thatthe author asks the courts to consider when they engagewith whether or not to certify a class.