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Monday, 16 December 2013 08:00

Managing and conducting common issues trials

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The Class Proceedings Act, 1992, has been in force since Jan. 1, 1993. In those 20-plus years, Ontario has had a handful of class actions reach the trial stage each year. Ontario’s experience is typical of other common law jurisdictions that have also had few class actions proceed to a common issues trial, but stands in contrast to Quebec’s experience, where class action trials have become the norm.

The common issues on which a judgment is rendered will not necessarily be the same common issues that were certified. Changes are often made to the common issues list as a result of matters that arise during discoveries as well as other stages of the action, even as late as the last days of a common issues trial.

In 2004’s Cloud v. Canada (Attorney General), the Ontario Court of Appeal recognized the need to accommodate amendments, stating:  “. . . the Act provides for flexibility and adjustment at all stages of the proceeding . . . any potential efficiency in advancement of their claims through the flexibility provided by the Act should, where reasonable, be utilized.”

Jurisdiction for courts to amend common issues arises from both the CPA and Ontario’s Rules of Civil Procedure. Under the CPA, s. 8(3) provides the court with jurisdiction to amend certification orders. In addition, s. 12 provides that on the motion of a party or class member, the court has jurisdiction to make any order it considers appropriate regarding the conduct of the proceeding in order to ensure its fair and expeditious determination.

Finally, since the Rules of Civil Procedure apply to class proceedings, Rule 26.01 regarding amendments to pleadings also applies. The rule provides that a court shall grant leave to amend a pleading at any stage of an action unless prejudice would result that could not be compensated for by costs or an adjournment.

In recognizing that, under Regulation 194 of the Rules, “certification is a fluid, flexible procedural process,” courts have allowed amendments that are relevant to the action, flow logically from the existing certification order, and do not fundamentally alter the nature of the action. These amendments can occur at various stages of the proceedings, even towards the end of the common issues trial.

In Smith v. Inco, the plaintiffs brought a motion to amend the common issues during the last days of the common issues trial. The motion was contested and the defendants also brought a cross-motion requesting another common issue to also be added. Justice J.R. Henderson granted both motions and the common issues list was amended to clarify semantic confusion and to reflect what had actually been argued at trial.

Both s. 12 of the CPA and Rule 26.01 were recently considered in Andersen v. St. Jude Medical Inc. In the late justice Joan Lax’s decision allowing the plaintiffs to amend the fresh statement of claim and the certification order to include waiver of tort issues, she dismissed the defendant’s arguments the amendments were late, fundamentally changed the action, and were prejudicial.

So long as amendments are relevant to the action, flow logically from the existing certification order, and do not fundamentally alter the nature of the action, the CPA and courts have recognized the complex nature of class actions and have allowed amendments to be made at various stages of the action.

Common issues trials also allow for aggregate assessments. Where no individual issues remain other than assessment of monetary relief, CPA s. 24 permits an aggregate assessment of monetary relief for the benefit of the entire class to be included in the relief granted.

The purpose of the section is to prevent inefficient and impractical individual proceedings in order to determine class members’ losses where the amounts can be more reasonably and fairly determined as a common question.

Where a court determines that individual claims need to be made in order to give effect to an order under s. 24(1), the CPA provides for the determination of individual claims with emphasis on minimizing the burden placed on class members. To accomplish this, s. 24(6) authorizes the court to make individual claim determinations through the use of standardized proof of claim forms, affidavit evidence as to damages, or auditing of claims on a sample or other basis.

In addition, the act expressly provides the court with the power to admit as evidence statistical information that would not otherwise be admissible in determining the appropriate aggregate award.

Section 23(3) further provides that statistical information may be admitted as evidence if notice is provided and the opposing party is provided with the opportunity to cross-examine the expert that supports the evidence.

The Ontario Court of Appeal has stated a finding of (i) liability and (ii) an entitlement to a remedy are sufficient to trigger the application of ss. 23 and 24 of the act.

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn Markson v. MBNA Canada Bank, a case involving illegal interests being charged for cash transactions on credit cards, Ontario Court of Appeal Justice Marc Rosenberg recognized the difficulty faced in assessing individual damages and approved the use of aggregate damages. In addition, as a result of the recordkeeping of the bank, the number of accounts and the small amount of damages owed to the class members, the court in Markson awarded an aggregate sum to class members even though it meant some class members who did not actually suffer damages shared in the award.
Monday, 16 December 2013 08:00

Out with the old in with the new (maybe)

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_Stephen-Mabey-2013.jpgDuring 2013 we talked about a number of challenges including:
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_sonyanigam.jpgWith the widespread reporting that our 24-hour news cycle allows, as well as citizen videos and distribution of information through social media, it is hard to deny the occurrence of human rights abuses when they arise. We see the images and hear the sounds, often reported only a few hours after they have taken place — apartment buildings torn apart, maimed children in hospitals, women crying in despair, reports of terror and repression.
Monday, 09 December 2013 08:00

Lessons to be learned from LSUC v. Groia

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_margaret-waddell.jpgWhen does zealous courtroom advocacy cross the line into incivility? And when does that incivility cross over to professional misconduct? The Law Society of Upper Canada has been grappling with these issues in a case that has held the attention of Ontario lawyers for nigh on a decade.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_lee-akazaki-revised.jpgAs I headed to my office, George pulled me aside and introduced me to a man whose face seemed familiar. ‘Lee, have you met Eric?’ he asked. ‘Eric is the worst lawyer in town. Eric, meet Lee, the best lawyer in town.’
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Standard_photos_Tracy-Nanziri.jpgIt has been three years since the Canadian Association of Black Lawyers toasted 17 of its own who were, rightfully, praised for cementing their positions as partners in Bay Street firms. I read the news, as I assume a number of black law students did, with a sense of admiration, albeit one mingled with disquiet.
Monday, 02 December 2013 08:00

Do clients really hate billable hours?

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Standard_photos_B.Hendrickson.jpgLawyers have a love-hate relationship with the billable hour. As it turns out so do our clients.
Monday, 25 November 2013 12:07

Video: Making Rain: Flex your directive muscle

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2013_November_MakingRain45.jpgIn this month's Making Rain, executive coach Debra Forman discusses how to flex your 'directive' muscle in your dealings with colleagues, clients, and your personal goals.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_benhanuka1.jpgThere is a new, futuristic method to examine the relationship among Supreme Court of Canada decisions, using case citations. As counsel or research lawyers, when looking at any particular decision of interest, we need to understand the past and future context of the decision, i.e., (i) the underlying historical cases on which the decision relied, or which it distinguished, or otherwise considered, and (ii) the subsequent cases that similarly judicially considered the particular decision.
Monday, 25 November 2013 08:00

The class action arms race

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b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgThis fall, Ontario Superior Court Justice Edward Belobaba released five decisions certifying proceedings as class actions and, as night follows day, five decisions on costs soon followed.
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