Multilayer Access to Environmental Justice: A Critical Policy Analysis of Ontario's Class Action Regime, 1992-2017

This study is an access to justice analysis of class actions in Ontario from 1992 to 2017, with a focus on environmental claims. Its central argument is that the primary policy objective of the Class Proceedings Act, 1992 of increasing access to justice, a fundamental human right, has largely not been fulfilled during this period for environmental claims, particularly those involving historical contamination and human health-impairment. This is a striking discovery given that environmental class actions were originally posited as paradigmatic class actions in Ontario since such actions typically involve negative value claims with diffuse harms across vast spatial and temporal contexts with acute power imbalances between victims and perpetrators in light of the negligible public enforcement of environmental regulations. The findings of this study uncover and explain the gap between this traditional perspective and the bleak reality of the floundering of environmental class actions in Ontario, with resultant negative implications for the capacities of residents to access justice in environmental matters. Departing from the proceduralistic and individualistic emphases of traditional class action and access to justice research, this study critically explores Ontario's class action regime for environmental claims by considering various contextual variables that are not commonly addressed in the established literature. By examining the exclusionary dynamics that operate to impede multilayer access to environmental justice in light of the power, production, and social reproduction associated with toxic exposures, this study expands the ambit of environmental class actions beyond the traditional confines to the broader political economy of pollution. In so doing, this study incorporates descriptive and normative aspects of classical access to justice research with explanatory argumentation for an integrated approach to evaluating multilayer access to environmental justice in Ontario. This contextual approach reveals a more complicated and socially reflective picture of environmental class actions than has heretofore been available in extant scholarship. By uncovering the exclusionary dynamics of class actions in the political economy of pollution, this study provides greater clarity about the type of environmental justice that is presently achieved and achievable in Ontario's class action regime