A bill passed in the P.E.I. Legislature in November, described by government as a way to make it easier for litigants to bring forward class action lawsuits in the province, will actually make it harder, according to the Atlantic Provinces Trial Lawyers Association (APTLA).
The Class Proceedings Act received royal assent on Nov. 17. Whenever cabinet brings it into force, P.E.I. will become the last province in Canada to enact legislation to provide a framework for class action certification. Prior to P.E.I., the most recent province to bring in similar legislation was Nova Scotia, which enacted its law in 2008.
Without a legal framework for the certification of class proceedings, lawyers trying to bring a suit forward in P.E.I. have had to argue in court for certification based on common-law principles.
Only one case has ever been certified on P.E.I., on behalf of Islanders with mental health-related disabilities who were excluded from the province's Disability Support Program. That case has been in the court system for six years and has yet to come forward to trial.
But in a letter sent to the province as part of consultations on the new legislation, the APTLA argued having no legislation at all would be better than the law put forward by the province and passed by MLAs in November.
The APTLA said the new law "would undermine the purported goal of creating an environment promotive of timely and affordable access to justice for residents of P.E.I."
New test seen as impediment
At issue is what's known as a predominance test, included in P.E.I.'s law, which would require that facts or legal issues common to every member of a class predominate over issues which vary from member to member in order for a suit to go forward.
For example, in a class action alleging abuse at an institution like an orphanage or school, a common issue that could be argued on behalf of all claimants could be that the institution was negligent.
But under the predominance test, if a court determined that the abuse suffered by the claimants was specific to each individual's circumstance or required evidence from each claimant, then the court might not certify the class action.
In that case anyone wanting to sue would have to bring forward their own separate proceeding in their own name.
Change favours defendants, commission said
The only other province in Canada to include a predominance test is Ontario, which introduced the measure in 2020.
The Law Commission of Ontario argued the change would shift the certification test "strongly in favour of defendants," having "a significant and negative impact on access to justice" while creating "significant barriers" to prevent residents from suing their own government.
The commission said previous landmark class actions which had been successful might never have gone forward under the new law, including the suit that came in response to the Walkerton tainted water crisis, or the class action on behalf of survivors of Indian residential schools.
Making access more difficult, lawyer says
"It's a really technical point, but it's a really big deal," said Mike Dull, the Halifax lawyer behind the only class-action certified under common law on P.E.I. (Common law is the body of legal rulings of all past cases, upon which new rulings are based when there is no written legislation on a topic).
Dull questioned whether his class action on behalf of Islanders with mental health-related disabilities would have been certified under the new law.
That suit was certified in P.E.I. Supreme Court in 2019, a decision upheld by the P.E.I. Court of Appeal in 2020.
"A cynic would say that the government of Prince Edward Island is passing legislation that is self-protectionary, that they are making it actually more difficult for groups — marginalized groups like residents with mental disabilities — to access the court system," said Dull.
The P.E.I. Human Rights Commission ruled in 2016 that the P.E.I. government had discriminated against Islanders with mental illness who were denied financial support under the Disability Support Program. The case had been brought forward by Millie King on behalf of her daughter.
The government appealed, but the Court of Appeal affirmed the human rights ruling in 2018.
P.E.I. courts have been urging the provincial government to enact class action legislation for years. A bill was introduced in 1997 by the government of Pat Binns but it never passed.
"The time has come for government to enact legislation, which would provide better access to justice for individuals who might benefit from such class proceedings," Justice Michele Murphy wrote in the 2020 decision upholding certification of the King case.
"That P.E.I. is the only province without such legislation is not only telling, it is compelling."
During debate on the bill in October, Blair Barbour, a legislative specialist with the P.E.I. Department of Justice, told MLAs that the government expected to bring the new law into effect sometime in 2022.
CBC News reached out to the Department of Justice for comment, but a spokesperson said no comment could be provided in time for publication.
CBC also asked for copies of submissions put forward during consultations on the new legislation. A spokesperson said the department was going through the submissions to look for personal information that would need to be redacted before any release.