The Class Action Trial: The Merits Are Back

As Quebec's class proceedings regime enters its fourth decade and Ontario's regime moves into its 21st year, the "if it is certified, it will settle" paradigm is gone. More class actions go to trial, and counsel’s attention has shifted from certification to the differences between conducting a class proceeding trial and conducting an ordinary trial. Are there differences? Yes. But, with minor exceptions, the plaintiffs must still prove their case at trial. The merits are and should be the focus of a common issues trial, not the policy considerations that inform the question whether or not a claim should proceed as a class action in the first place.

Below, we discuss key differences between class action trials and ordinary trials, as well as highlights from certain class actions that have gone to trial.

Reproduced with permission of the publisher from Class Action Defence Quarterly, vol. 7, no. 3, March 2013.