Law Reform Commission of Saskatchewan Consultation on Reform of The Class Actions Act

The Law Reform Commission of Saskatchewan was established by An Act to Establish a Law Reform Commission (proclaimed in force in November 1973) and began functioning in February 1974.

The Commission is incorporated by an Act of the Saskatchewan Legislature. Commissioners are appointed by Order in Council. The Commission’s recommendations are independent and are submitted to the Minister of Justice and Attorney General of Saskatchewan for consideration. Projects are initiated by the Commission in response to suggestions from the public and the legal community, or at the request of the Minister of Justice and Attorney General. After preliminary research, the Commission usually issues a background or consultation paper to facilitate consultation. Tentative Proposals may be issued if the legal issues involved in a project are complex. Upon completion of a project, the Commission’s recommendations are formally submitted to the Minister of Justice and Attorney General as final proposals.

The Law Reform Commission of Saskatchewan is interested in your response to the Class Actions Consultation Report (available on the Commission's website: https://lawreformcommission.sk.ca/publications/).

Your comments and opinions on the topic are welcome and are an important part of the Commission’s deliberation on recommendations for law reform. Please allow the following questions to guide you in your response:

1. Is The Class Actions Act furthering the three objectives of class actions: (1) access to justice, (2) judicial economy, and (3) behaviour modification?

2. Is The Class Actions Act in need of reform to better reflect current class actions practice and procedure?

The consultation period on this project closes on February 28, 2022.

Question Title

* 1. Managing Class Actions

1. Is pre-certification delay a problem for class actions in Saskatchewan? Should the ninety-day rule be replaced with a one-year deadline within which the certification motion is to be scheduled and the plaintiff’s motion material to be filed?

2. Do dormant class action files pose a problem in Saskatchewan? Should the CAA be amended to include a mandatory dismissal provision? Are there any other legislative measures that could be adopted to manage dormant class actions?

3. Are the case management provisions in The Queen’s Bench Rules sufficient or should Saskatchewan consider amending the CAA to include specific provisions regarding case management of class actions? If so, what should those rules be?

4. Would Practice Directives respecting class actions additional to those that now exist for managing class actions in Saskatchewan have value? Why or Why not? What matters should be addressed in a Practice Directive instead of in the CAA?

Question Title

* 2. Carriage

5. Should the CAA be amended to include carriage motion specific provisions similar to those recommended by the LCO? Why or why not?

Question Title

* 3. Certification

6. Are class actions certified too readily in Saskatchewan? If so, is this due to the lack of a preliminary merits test in the CAA?

7. Is reform of the CAA necessary to alter the evidentiary standard applied to the certification requirements?

8. Is the preferable procedure criterion in the certification test in the CAA in need of legislative reform?

9. Should the CAA be amended to reverse the “certification first, with exceptions” rule currently applied by Saskatchewan courts by adding a provision similar to s. 4.1 of the CPA?

10. Do you have any other suggestions for how the certification process could be improved in Saskatchewan?

Question Title

* 4. Settlement Approvals

11. Should Saskatchewan’s legislation be amended to require court approval of settlements pre-certification? Why or why not?

12. Should Saskatchewan’s legislation be amended to require the court to consider whether the proposed settlement is “fair, reasonable and in the best interests of the class”? Why or why not?

13. If court approval is required for pre-certification settlements, should the same criteria (fair, reasonable and in the best interest of the class) be considered by the court

14. Are other any other criteria that the court should be required to consider in deciding whether to approve a proposed settlement?

15. What, if any, evidentiary requirements should be added to the CAA respecting settlements?

16. Should Saskatchewan’s CAA be amended to explicitly allow judges the discretion to appoint an amicus curiae to assist in the decision on whether or not to approve a settlement agreement? Why or why not?

17. Should Saskatchewan’s CAA be amended to require notice of a settlement approval application to go to agencies, such as the Office of the Public Guardian and Trustee when there is a reasonable possibility class members are represented by the agency?

Question Title

* 5. Settlement Distributions

18(a). Should the CAA be amended to include criteria the court must consider when deciding whether to approve a distribution plan?

18(b). What should those criteria be?

18(c). Would such criteria be better placed in a Practice Directive than in the CAA?

19(a). Should the CAA be amended to require that notice be the best notice practicable? Why or Why not?

19(b). Should the CAA be amended to require notice to be provided using plain language? Why or Why not?

19(c). Do you have any recommendations for how the notice procedures for class actions could be improved?

20. Do you have any recommendations for how the cy près legislative framework for settlement distributions in Saskatchewan could be improved?

21(a). Should Saskatchewan consider implementing mandatory outcome reporting similar to the newly added s. 27.1(16) of Ontario’s CPA? What are some challenges and/or benefits you anticipate resulting from this type of outcome reporting?

21(b). Should the CAA be amended to provide that claims administrators have a duty of competence and diligence?

Question Title

* 6. Fee Approval

22(a). Should the CAA be amended to require fees to be “fair and reasonable” in order to receive court approval? If so, should the CAA specify factors to be considered or methods to be utilized in making this determination?

22(b). Should the CAA be amended to require court approval of fees payable to counsel if a class action is settled prior to certification?

22(c). Should the CAA be amended to provide the court with discretion to hold back a portion of fees pending information on distribution to class members?

Question Title

* 7. Third-Party Litigation Funding

23(a). Should the CAA be amended to include rules regarding third party funding agreements?

23(b). If yes, should Saskatchewan adopt the rules contained in section 33.1 of the CPA?

Question Title

* 8. Appeals

24(a). Should the requirement to obtain leave to appeal orders determining or dismissing individual claims and orders certifying or refusing to certify or decertifying a class action be removed or amended?

24(b). Should the CAA be amended to prohibit amendments of materials on appeal?

24(c). Should rights of appeal in the CAA be limited to certification-related matters?

24(d). Is the appeal regime in the CAA in need of any other type of modification?