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Post-judgment individual issues decision offers guidance for class proceedings


Editor’s note: Identifying individual issues after the resolution of common issues in class proceedings can help determine compensation owed to particular class members. This article was originally published on the Ontario Bar Association’s Class Actions Law Section website.

The spectre of future individual issues is invoked regularly to oppose certification of a class proceeding. Recent amendments to the Class Proceedings Act, 1992 now require that common issues “predominate” over individual issues in order to certify a class proceeding. This predominance requirement will serve to intensify attention on potential future individual issues at certification. Despite this focus on individual issues, Ontario has little judicial authority on individual issues litigation after the common issues. Authority to date shows that individual issues litigation can be structured to ensure that individual questions will be determined in accessible and effective ways, even in large, complex proceedings.

Recently in Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General), Justice Perell released a joint show cause decision outlining a proposed procedure for the determination of individual issues after the common issues were determined by way of summary judgment. Following the show cause decision, a final joint decision on individual issues procedures was released on March 3, 2021, with only editorial changes to the original individual protocol. Justice Perell’s decision is only the second decision in Ontario where the court has been tasked with setting an individual issues protocol after a merits determination. Previously, Justice Perell also determined a contested individual issues motion in Lundy v. VIA Rail Canada Inc.

Lundy, Brazeau and Reddock differ significantly in terms of context. Lundy concerned a train derailment and a class of approximately 54 people with a range of personal injuries. The common issues in Lundy generally sought to determine whether the defendant was negligent in the operation of the train, leading to the derailment. The defendant consented to judgment on the common issues and the class obtained judgment in their favour on the common question of negligence. Aggregate damages were not available.

Brazeau and Reddock concerned the usage of solitary confinement in federal institutions and a class of approximately 8,000 in Brazeau and 9,000 in Reddock.

The common issues in Brazeau asked whether the defendant had breached sections 7, 9 or 12 of the Charter and whether damages could be determined in the aggregate. The class largely succeeded at the summary judgment motion in Brazeau and on appeal, ultimately obtaining judgment in favour of the class on the common questions of whether Canada breached sections 7 and 12 of the Charter. The class in Brazeau also obtained an aggregate award of $20 million.

The common issues in Reddock similarly asked whether the defendant breached sections 7, 9, 11(h) and 12 of the Charter, along with the question of whether Canada was negligent. The class succeeded at summary judgment and on most issues on appeal, obtaining judgment in favour of the class on the common questions of Canada’s breach of sections 7 and 12 of the Charter. Similar to Brazeau, the class in Reddock also secured an aggregate damages award of $20 million.

Justice Perell’s individual issues decision in Brazeau and Reddock provides significant insight into the future of individuals issues litigation and establishes a reference point for considering predominance. Brazeau and Reddock supports the position that direct reference to the normal regimes of litigation are incorrect comparators to predict how complex or dominant individual questions may become. Justice Perell held that individual issues procedures need not, and will not, always mirror the procedural regimes set by the monetary limits of the rules of civil procedure, stating that “Creativity and the principles of proportionality have a role to play in designing the individual issues stage of a class action.” As a result, the question of predominance cannot be answered by defendants simply asserting that every individual question will necessarily become an onerous mini-trial.

One of Justice Perell’s key determinations in Brazeau was that, while the courts cannot outsource adjudication to external referees absent consent, “[c]ourts do have, however, the power to use Court-appointed experts to assist the court”. The role of such experts or managers would be to “…inquire into and report to the Ontario Superior Court of Justice or to the Superior Court of Québec his or her findings and conclusions as to the quantum of the Class Member’s claim by reviewing the Claims Form, the Class Member’s CSC file, and the affidavit material, transcripts, and factums filed by the Class Member and Canada. The Manager/Expert would then report to the courts, and then either party may move without additional evidence for an Order determining the quantum of the Track 2 claim.” Track 2 claims were limited to a maximum of $50,000.

The Court held further that the expense of the experts/managers could be imposed on the defendant, ensuring a litigation process that is still financially accessible to the class members. The ability of courts to appoint managers/experts who can make findings on a paper record has the potential to streamline the determination of individual questions significantly. In particular, appointing experts/managers to assist in the litigation reduces the prospect of individual issues becoming buried in inaccessible procedures or overwhelming judicial resources.

Potentially the most important insight to be gained from Brazeau, Reddock and Lundy is simply having practical examples of how individual questions might be determined, including the reality that a variety of processes and procedures will likely be used, proportionate to the size of a class member’s claim. Predominance should not be argued on a hypothetical which assumes that all class members will proceed with the most complex or lucrative procedure, akin to a full trial. Lundy, Brazeau and Reddock offer real-life examples of how class members may elect to proceed, or not proceed, with litigation which limits the complexity and number of individual issues to be determined.

Enshrining procedural choices for class members was central to Lundy, Brazeau and Reddock. In Lundy, class members could elect a simplified procedure if they were content to be limited by a monetary cap. Regardless of complexity, the individual personal injury issues in Lundy could be governed by a procedure less complicated than a small claims matter.

In Brazeau and Reddock, the class members can select different procedures with procedural complexity increasing relative to monetary limits. The choice for class members in Brazeau and Reddock differs from that in Lundy because Brazeau and Reddock involves aggregate awards of base level damages. The availability of an aggregate award of base level damages means that some class members can elect to receive only their share of the aggregate award. Thus, regardless of potential outstanding individual issues, the common part of the case can be fully determinative for some class members’ claims, depending on their election. As a result, if a plaintiff can show at certification that an aggregate award is possible, this should satisfy the predominance requirement. In the event aggregate damages is not certified, a court should still consider how, in practice, individual issues may be determined when class members are given a range of procedures, including simplified means of adjudication.

Successful individual issues litigation is crucial to achieving the access to justice goals of the Class Proceedings Act, 1992. Class actions involving personal injuries and limitations questions will often involve potential future individual questions. The prospect of individual questions after common issues cannot mean the end of entire categories of class actions. The guidance to date shows that individual questions can be dealt with in efficient and effective procedures ensuring the predominance of the common questions, even in complex proceedings.