Given the binding effect of the judgment in a class action, the consequences for the other members of the class could be very prejudicial." OLRC REPORT, supra note 5, at 33.
Without a representation order, "it would appear that those members of the class not named in the suit will not be bound by the proceedings." OLRC REPORT, supra note 5, at 33 n.155.
The OLRC further introduces a third category of test, stating that "[w]here the balance of benefits and harms is uncertain, and the family requests testing, such requests should be presented to an ethics committee (possibly the hospital's own committee, where available) for determination." (95)
Therefore the OLRC poses three categories of newborn screening, with different approaches to the necessity and even the possibility of parental consent: 1) tests for which no explicit parental consent is required as they are in the infant's best interests; 2) tests which may not be undertaken and thus for which no parental consent maybe given (tests that are contrary to the best interests of the infant); and 3) tests the utility and validity of which are uncertain, and concerning which referral to an ethics committee is required.
About the same time as the OLRC
released its report, the Federal Court of Appeal issued its decision in Human Life International in Canada Inc.
231,232 (1995) ("the existing costs rules governing litigation, if applied unaltered to class actions, could constitute 'a disincentive to bringing grouped proceedings and might in fact create yet another barrier to access to legal remedies of the kind which the [class action] itself aims to overcome'" (quoting AUSTRALIAN LAW REFORM COMM'N, GROUPED PROCEEDINGS IN THE FEDERAL COURT 106 (1988)); 3 ONTARIO LAW REVISION COMM'N, REPORT ON CLASS ACTIONS 703 (1982) [hereinafter OLRC REPORT] ("the application of the existing Ontario costs rules to class actions has resulted, and will continue to result, in the commencement of very few class actions").
(22.) See, e.g., 3 OLRC REPORT, supra note 12, at 656 (footnote omitted):
Adell's recommendation did not find favour with the OLRC
, which instead proposed its own elaborate system of mutual deferral and referral, combined with cross-training and cross-appointments for adjudicators.
Hadwen et al, supra note 25 at 230; OLRC
Report, supra note 4 at 13.
That is because of the role of the OLRC
in the positive law codification process.
The LCO is considering whether to add a merits test to the certification threshold, as originally recommended by the OLRC
. A merits test has been made part of the secondary market securities class action process under securities legislation.
In the OLRC
's view, the distinction between the 'popular' and 'legal' definition of charity reflects a distinction between the degree of deprivation and the means of flourishing.