Defence Bar's Playbook

Defendants employ a three-pronged approach at certification. I call it the “presence or predominance of individual differences and issues”. This Case Note should be read as a supplement to the “Species of Predominance” Case Note. By way of a sports analogy, class members have to eventually make a touchdown to succeed in their individual claims. In a class action, they can move the ball 5, 25, 50, or 75 yards together before charging to the end zone on their own. The American Rule 23(b)(3) predominance standard would require them to collectively move past the 50 yard line. The Canadian test does not require that, as provincial legislatures rejected predominance. In Cloud v Canada (2004), 73 OR (3d) 401 (C.A), the Ontario Court of Appeal permitted certification unless the individual issues “overwhelm” the common issues. Nevertheless, defendants continue to challenge certification on the following bases:

As stated in my Sharp Sticks, all the answers to defendants’ arguments are in the legislation. “Common issues” are defined in each province as common “but not necessarily identical” issues of fact, or issues of law that arise from common facts. The “not necessarily identical” standard tolerates great diversity between class members. All provinces (except Ontario) expressly recognize common issues “whether or not they predominate over individual issues”, and in Ontario, Cloud has effectively written that in. Subclasses may be created to deal with legally material differences, and the bulk of the provisions in class actions legislation mandate the most fair and efficient procedures
to resolve the individual issues. 

Of the three-pronged approach, a judge could refuse to certify at #3(b)(ii) in the exercise of his or her discretion, but following Cloud, those cases should be rare. The other prongs are an insufficient basis not to certify, nevertheless there are certification denials based on each. Different judges address the levels with varying degrees of detail.

A proper approach starts and ends with the legislation, and could be supplemented with the unlegislated “liberal and flexible approach” to class actions that “balances fairness and efficiency”: Western Canadian Shopping Centres Inc. v Dutton, [2001] 2 SCR 534.

The set of ancient CANS that the defence bar passes around (yes, practice in large firms is just like law school) usually includes:

The antidote to these authorities is, as always, the legislation and, additionally, the learned certification decisions of the Honourable Mr. Justice Cullity.