Canadian Class Actions 101: What You Need To Know

Although class actions in Canada share similarities with their U.S. counterparts, there are also procedural and substantive distinctions. In this bulletin, we set out everything your business needs to know about class actions in Canada and how they differ from the U.S., including jurisdiction, certification standards, the approach in common law versus civil law provinces, discovery, damages, post‑certification practice and costs.

What you need to know

• Certification of a class action in Canada is strictly procedural, with limited—if any—consideration of the merits. This means more actions tend to get certified in Canada, but defendants have historically been successful at common issues trials.
• Class actions in Canada often cover a national class: plaintiff's counsel typically launch class actions in one of the common law provinces and Québec. Recently, the trend is to commence common law actions in BC because of its lower bar for certification and more favourable cost consequences.
• Canadian class actions proceed more slowly than in the U.S., particularly in common law provinces: it can take 2 to 3 years to reach a certification hearing and 5 to 10 years to reach a common issues trial.
• Canada does not have multidistrict litigation-type legislation for the aggregation and coordination of individual claims, but some plaintiffs' counsel have begun to pursue an informal version of "mass tort"-style litigation.
• The most common types of class actions are consumer protection, product liability and securities, with environmental, "toxic tort", artificial intelligence and social media actions on the rise.

Background

In contrast to the more robust certification analysis characteristic of U.S. courts, certification of a class action in Canada is strictly procedural, with limited—if any—consideration of the merits. The lower bar to certification means that although more class actions are certified than not in Canada, defendants are generally successful at trial. The pace to reach a hearing on the merits ismuch slowerin Canada than in the U.S., with class actions taking up to a decade or more to reach a common issues trial.

Class actions in Canada aremultijurisdictionaland can (and often do) cover a national class. Ontario and PEI are the only provinces that have U.S.-style predominance and superiority requirements. The addition of these requirements in Ontario in 2020 caused a shift in plaintiffs' counsel's preferred forum for class actions. Ontario is no longer the most popular venue: thetrend is to launch claims in Québec and British Columbia(BC), which have a lower bar for certification and more favourable cost consequences for plaintiffs. The Federal Court is popular for cases that fall within its jurisdiction.

In terms of substantive trends, consumer protection, product liability and securities class actions are the most litigated in Canada, with environmental, "toxic tort"and class actions in the technology space (including artificial intelligence and social media) on the rise. Because Canadian courts, unlike their U.S. counterparts, do not view medical diversity as a bar to demonstrating "common injury",personal injury class actions are commonplace. The lack of a formal preemption defencein Canada means class actions can extend to industries typically excluded in the U.S. by federal preemption, including the pharmaceutical, medical device, cosmetic, automotive, federally-regulated consumer goods and agricultural industries.

Jurisdiction: where are class actions commenced?

• Provincial.  All provinces in Canada have procedural legislation that allows for litigants to seek collective redress through a class action. Most class actions proceed in provincial superior courts (the functional equivalent of trial-level state courts).
• Federal.  Canada has a single trial-level Federal Court of limited statutory jurisdiction (rather than multiple district courts), which can only consider class proceedings where the claims fall within its jurisdiction (limited to such matters as intellectual property, immigration, competition law, or issues involving federal statutes). While the Federal Court hears fewer class actions than provincial courts overall, it has become a popular forum for those that fall within its jurisdiction.
• National classes.  Class members are not limited to members in the province in which the claim was commenced. Class actions started in one of the common law provinces can be, and often are, brought on behalf of a national class, sometimes with carve outs for Québec residents due to its unique status as Canada's only civil law jurisdiction.
• Multijurisdictional management.  If multiple class actions relating to the same subject matter and defendants are brought in different provinces, multijurisdictional protocols adopted by provincial practice directions exist to help courts and litigants manage overlapping proceedings and avoid duplication. When different plaintiff firms commence competing class actions, the "lead" class action is often determined through carriage motions, although Canada has seen the rise of multi-plaintiff firm consortiums to avoid carriage battles. There is no special federal procedure for multidistrict litigation in Canada, although an unofficial "mass tort" model has emerged in recent years.
• Cross-border implications. Because Canadian class action trends often follow U.S. developments, parallel class actions involving the same or similar defendants are customary. Cross-border coordination is crucial to strategic alignment and managing parallel proceedings efficiently, especially because plaintiffs' counsel are increasing their international coordination.

Pre-certification: what are the typical features?

• Actions are commenced with a claim.  Canadian class actions begin with a claim, which is usually followed by a certification motion or application. The exception is Québec, where class actions start with an application for authorization.
• Defences sometimes precede certification. In some provinces, notably Ontario and BC, it has become more common for courts to require defendants to file a defence before the action proceeds to a certification motion or application. In practice, this depends on whether plaintiffs' counsel insists on a defence or not prior to certification.
• Case management is the norm.  Most litigation in Canada is party-driven. However, case management of the procedural steps (both before and after certification or authorization) leading up to a common issues trial is the default for class actions in most jurisdictions. BC is an outlier in this regard: the BC court abolished default case management for class actions in 2023, but in response to feedback from the Bar, it has indicated it is reviewing this decision. Generally, the judge overseeing case management will differ from the judge hearing the common issues trial (including in Ontario, Québec, and the Federal Court), although BC is an exception.
• Pre-certification motions practice.  Whether pre-certification motions on threshold issues (such as jurisdiction or summary judgment) are permitted prior to certification depends on the jurisdiction. In Ontario, amendments to class actions legislation have given priority to pre-certification motions that may dispose of the proceeding in whole or in part. In contrast, BC courts have often held that certification is presumptively heard first, although this approach has been softened in cases where the plaintiff delays bringing their certification application. In Québec, defendants may bring preliminary motions, including motions for leave to adduce relevant evidence and motions for leave to examine the plaintiff. These motions are not automatic and require judicial permission.
• No U.S.-style federal pre‑emption defence. U.S. law recognizes certain statutory/constitutional pre‑emption defences (for example, Federal Food, Drug and Cosmetic Actpre‑emptions) that can bar state‑law class claims. Canada has no federal pre‑emption defence. Although there are doctrines of federal paramountcy and interjurisdictional immunity, these are applied narrowly: provincial law is inoperative only where there is an operational conflict with, or frustration of, a valid federal purpose. As a result, it is common for class action claims under provincial statutes and common law to proceed alongside claims under federal statutes.

Certification: when can a class action proceed?

• Similar but different.  As in the U.S., plaintiffs in Canada need to demonstrate a proposed class action is certifiable. The certification criteria in common law provinces share some, but not all, features in common with the U.S. Federal Court requirements of numerosity, commonality, typicality and adequacy of representation.
• Certification criteria.  In common law provinces, certification typically requires a plaintiff to demonstrate the following:
  • the pleadings disclose a cause of action;
  • an identifiable class of at least two persons;
  • common issues between members of the proposed class;
  • whether proceeding by way of a class action is the preferable procedure; and
  • whether the representative plaintiff would fairly and adequately represent the interests of the class.
• Lower standard. Certification is determined on a motion (or in some provinces, an application) to consider whether a class action is the appropriate procedural vehicle. Unlike the "rigorous analysis" mandated in the U.S., Canadian courts are limited in their ability to evaluate the merits of a case at certification: the focus is procedural. The Canadian evidentiary standard requires a plaintiff to show "some basis in fact" that each criterion (except for the "cause of action") has been met. This is a lower standard than the "preponderance of the evidence" standard required by U.S. courts.
• Paper record.  In common law provinces, the plaintiff's evidence for certification is usually presented through fact and expert witness affidavits, with defendants entitled to respond. Depending on specific provincial rules and procedures, the parties generally have the right to cross-examine the other side's affiants. Cross-examinations typically occur outside of court, before a reporter who produces a transcript. Video recording cross-examinations is permissible, but rare. Certification motions and applications are then argued based on a paper record, which can include the affidavits and any cross-examination transcripts.
• Limited predominance and superiority. Unlike in the U.S., certification in Canadian courts is not conditional on predominance and superiority being made out—except for Ontario and Prince Edward Island, which introduced predominance and superiority into their certification tests in 2020 and 2022, respectively. The heightened certification threshold in Ontario (previously the most prevalent common law forum for class actions) has resulted in forum shopping by plaintiffs, who now typically favour BC and Québec.
• Personal injury class actions. In the U.S., personal injury claims rarely proceed as class actions because it is accepted that the diversity of claimants' medical histories precludes establishing a common injury. In Canada, class actions involving personal injuries are customary (particularly due to the lack of a formal multidistrict litigation system). That said, defendants often raise similar themes during the certification stage in Canadian class actions, leaning into the lack of commonality and preferable procedure to argue against certification in personal injury cases due to their individualistic nature.
• Costs. Many provinces apply a loser‑pays rule to costs for certification (with judicial discretion), including Ontario. However, BC and the Federal Court are generally "no costs" regimes in relation to certification motions (although this rule does not apply to pre-certification applications in BC), and Québec employs a low-costs regime, making these jurisdictions attractive for plaintiffs.

Québec's regime: how does it differ from common law provinces?

• Québec-specific classes.  Québec is the only civil law province in Canada. Because of the significant differences in substantive and procedural law between Québec and the common law provinces, it is common for plaintiffs to pursue a separate action in Québec for Québec residents, alongside a class action in a common law province on behalf of a class covering the rest of Canada.
• Authorization. In Québec, class actions need to be "authorized" rather than certified. The process includes the following notable distinctions:
  • In Québec, there is no evidence automatically entered at the authorization stage: by default, authorization applications proceed on the authorization application alone, and parties need leave to file evidence.
  • Courts may allow defendants to file limited documentary evidence or affidavits to provide necessary context or to contradict factual allegations, though expert reports are generally excluded. If affidavits are permitted, plaintiffs may be granted a limited right to cross-examine the affiant. Similarly, motions for leave to examine the plaintiff are allowed in exceptional cases, typically when the examination is narrowly tailored to the authorization criteria.
  • Québec plaintiffs need to show that the facts "appear to justify the conclusions sought", rather than meet the "some basis in fact" test.
  • Authorization in Québec typically occurs on a faster timeline than certification in common law provinces.
• No claim until authorization.  Because Québec class actions start with an application for authorization, plaintiffs do not file a claim until the class action is authorized.

Multidistrict litigation: does Canada have mass torts?

• MDLs in the U.S.  In the U.S., collective claims on behalf of litigants who share a common hook for liability but who lack a common injury may proceed as "mass torts" in multidistrict litigation (MDL) if approved by the Judicial Panel on Multidistrict Litigation. MDLs consolidate individual lawsuits filed in various jurisdictions in a single federal district for pre-trial processes to coordinate and consolidate pre-trial proceedings, such as discovery and preliminary motions.
• No MDLs in Canada, but nascent mass torts.  Canada does not have legislation that allows for the aggregation and coordination of individual claims on a national or provincial scale. Notwithstanding this, some plaintiffs' counsel have begun to pursue an informal version of mass tort-style litigation, filing large numbers of individual claims that are grouped for efficiency, some nationally and some confined to a single province.
• More defence input. Because there are no formal federal or provincial procedural tools to manage mass torts, procedural coordination requires cooperation from all parties. Defendants named in Canadian mass tort claims therefore have the opportunity to influence relevant procedures, including through use of U.S.-style tools like common discovery and bellwether trials. 

U.S. versus Canada: what are other notable differences?

• Pace of litigation. Canadian class actions often proceed more slowly than in the U.S., particularly in common law provinces. Outside of Québec and the Federal Court, it often takes two or more years to reach a certification hearing. If a case goes to a common issues trial it may take 5 to 10 years to reach a hearing in all courts (except for the Federal Court, which tends to be faster).
• Jury trials uncommon. Civil trials in Canada proceed by judge alone by default, and jury trials are rare.
• Lower damages. The damages exposure in Canada tends to be lower for a number of reasons:
  • There is a maximum limit for awards of general personal injury damages (i.e., non-pecuniary damages arising from pain and suffering, emotional distress and loss of enjoyment of life) based on a Supreme Court of Canada trilogy of cases from 1978, which set a general damages "cap" of $100,000 adjusted annually for inflation (approximately $450,000 as of the date of publication).
  • Punitive damages are awarded only in exceptional cases to punish egregious, malicious, or high-handed conduct and to achieve deterrence and denunciation. They are not compensatory and require an independent actionable wrong. In the rare instances where punitive damages are awarded, they tend to be very modest compared to the U.S.
  • There are no treble damages in Canada.
• Opt out/in.  Most provinces (including Ontario, BC and Québec) employ an opt-out model following certification/authorization of a class action. However, some use a hybrid opt‑in/opt‑out model for non‑residents.
• Settlement approval. Settlement of a class action typically requires court approval to ensure it is fair, reasonable and in the best interests of the class. Courts generally approve settlement falling within a zone of reasonableness. Declining to approve a settlement is the exception, although in recent years courts have increasingly scrutinized the size of class counsel fees.
• Discovery. Documentary production and oral discovery in Canadian class actions occurs following certification of a class action and includes the following features:
  • In common law provinces, parties have an obligation to produce documents relevant to material facts in dispute, subject to proportionality. The procedure in Québec is more similar to the U.S. Federal Court practice of responding to document requests.
  • Examination for discovery (the equivalent of U.S. depositions) generally restricts the discovery of corporate defendants to one representative, who is expected to have generally advised themselves of the relevant facts at issue in the litigation. If a corporate representative does not know the answer to a proper, relevant question, counsel may give an undertaking to obtain the information from others at the company. Speaking objections are permitted, and counsel may refuse to have a witness answer a question on grounds of relevance or privilege. If a party believes questions were improperly refused, they may bring a motion to compel answers.
  • Unlike depositions, examinations for discovery are rarely videotaped. Transcripts are taken by a court reporter. Answers provided by a corporate representative are binding on the company. The transcript is admissible at trial as a "read-in" against that party.
  • Discovery of third parties is limited, and there is no pre-trial oral discovery of experts or fact witnesses in Canada. Other than the corporate representative, the first time one side examines the other party's experts and fact witnesses in a Canadian proceeding is at trial, though there are procedures to obtain "will say" statements from anticipated witnesses.
  • Discovery in Canada is subject to an implied undertaking rule, which prevents parties from using information and documents obtained during the discovery process in one lawsuit for any other purpose without a court order or consent. Protective orders that govern the handling of confidential information between the parties may also be entered into, although some courts (Ontario and the Federal Court), are more familiar and willing to grant these types of orders than others. However, it is not possible to file documents confidentially with the court without first obtaining leave, which is granted sparingly as Canadian courts tend to err in favour of the "open court" principle.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.