Class Actions as Alternative Dispute Resolution

Abstract

This article situates the class action in ADR theory by viewing it as a hybrid process that draws on both the command and consensus portions of a rational dispute resolution continuum.

Class action statutes do this in a number of ways, the most important being the scope they give to courts to approve or disapprove class settlements that have been privately negotiated by defence and class counsel. The rationale is to protect the interests of absent class members and ensure that the legislative goals of class actions — access to justice, judicial economy and behaviour modification — are well served.

Class actions can thereby render moot some of the public/private debate over settlement by taking disputes out of the purely private realm and placing them in the quasi-public realm. However, this places courts in an unaccustomed role and calls for the need for more empirical research on settlement quality to help judges evaluate negotiated settlements.

The article's focus is comparative and Canadian, drawing on legislation and case law in Quebec, Ontario and British Columbia, the first Canadian provinces to enact class action statutes.

Keywords: class actions, dispute resolution, ADR, settlement, access to justice

JEL Classification: K4