Embrace the Truth: The Class Proceedings Act, 1992 is Substantive Legislation

  • March 24, 2023
  • Garth Myers

“The law is clear that class proceedings legislation is procedural in nature and does not modify or create substantive rights” see Bisaillon v. Concordia University, 2006 SCC 19 at para. 17

Courts have repeatedly held, often without significant analysis, that the Class Proceedings Act, 1992 is procedural—not substantive—legislation. It has “proceeding” in the name, right? It only governs the form of the action. Surely it can’t modify substantive rights.

But is that right? The Act certainly does impact procedure, particularly in respect of certification of an action as a class proceeding (s. 5); modification of procedural rights at the individual issues phase (s. 25); and the opt out process (s. 9).