June 13, 2003 By: Allan R. O'Brien
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The interpretation given to the factors listed under s. 5 of Ontario's Class Proceedings Act has continued to develop following Hollick v. Toronto (City), [2001] 3 S.C.R. 158 and Rumley v. British Columbia, [2001] 3 S.C.R. No. 184. Here is an overview of Ontario caselaw.

A. Cause of action

The test for establishing that the pleadings disclose a cause of action is the same as the test applied on a Rule 21 motion. As long as it is not "plain and obvious" that the claim is certain to fail, the plaintiffs must be permitted to proceed. In Gariepy v. Shell Oil, [2002] O.J. No. 2766, Justice Ian Nordheimer indicated that while s. 5(1)(a) refers to the pleadings disclosing "a" cause of action, that section is not interpreted as meaning that only one cause of action need be established. Any untenable action will be struck.

B. Identifiable class

The importance of an identifiable class was demonstrated in Western Canadian Shopping Centre Inc. v. Dutton (2001), 201 D.L.R. (4th) 385 (S.C.C.). It is a key issue, as the class definition identifies those persons who are entitled to notice and relief and those bound by the judgment. In Pearson v. Inco Limited, [2002] O.J. No. 2764, Justice Nordheimer indicated that a class definition should not be overly inclusive or arbitrary. On the facts of the Pearson decision, the proposed class was defined principally by reference to geographic boundaries. That definition was arbitrary, as it included some individuals who would have no claim and excluded other individuals who had identical claims to those persons who were included.

In Hickey-Button v. Loyalist College of Applied Arts and Technology, [2003] O.J. No. 811, Justice Bernard Manton indicated that if the merits and the individual circumstances of a person's claim must be looked at in order to determine whether that person is within the class, then the class is not identifiable. There must be an objective basis to determine who is and is not a member of the class.

In Chadha v. Bayer Inc., [2003] O.J. 27, the court of appeal upheld the finding of the Divisional Court that the proposed class definition that included homeowners who "suffered loss or damages" was circular. A trial would need to be held in order to determine whether the homeowner was within the class.

However, it is not necessary to know the identity of each class member, nor the exact number: Wilson v. Re/Max-Metro City, [2003] 63 O.R. (3d) 361.

C. Common issues

In Hollick, it was determined that an issue will be common only where its resolution is necessary to the resolution of each class member's claim. As a practical matter, the cases have focused on whether the resolution of the proposed common issues is going to move the litigation forward.

An important consideration will be the extent of any individual issues that remain for determination after the common issues have been resolved. In Gariepy, Justice Nordheimer declined to certify the action as a class proceeding on the basis that the determination of whether the defendant's products were defective did not significantly advance the overall determination of liability, as there were a myriad of reasons why a class member's plumbing system might fail.

As well, in Fehringer v. Sun Media Corp., [2002] O.J. No. 4110, Justice Nordheimer declined to certify on the basis that it was not possible to make a blanket determination of liability without first engaging in an individual examination of each member's claim. In addition, many of the claims give rise to individualized defences. If the common issues as proposed are inadequate, it is open to the judge to modify them: Williams v. Mutual Life Insurance Co., [2003] O.J. 1160 (C.A.). The extent of required evidence at the certification motion is a difficult one to determine. As a practical matter, although the court is not to assess the merit of the claim on a motion for certification, there must be some evidence before the court that is sufficient to demonstrate a common issue.

D. Preferable procedure

Following Hollick there has been a suggestion that the onus is on the defendants to establish the preferability requirement.

That argument was rejected in Gariepy. It is the plaintiff's onus throughout to satisfy the court that the requirements of s. 5(1) have been met.

However, whether there remains an onus on the defendant to adduce some evidence on the preferability requirement remains uncertain.

(See 1176560 Ontario Limited v. Great Atlantic and Pacific Co. of Canada, [2003] O.J. No. 1089 (Div. Ct.))

E. Representative plaintiff

In Ontario a representative plaintiff must have a cause of action against each named defendant: Ragoonanan Estate v. Imperial Tobacco Canada Limited, (2000) 51 O.R. (3d) 603 (S.C.J.) and Boulanger v. Johnson & Johnson, [2002] O.J. No. 1075.

The court of appeal dealt with the issue in Hughes v. Sunbeam Corp., [2002] O.J. No. 3457, in which the plaintiff had a direct cause of action against only one of the defendant manufacturers.

The claim against the other named defendants, who played no role in design, manufacture or distribution of the plaintiff's smoke alarm but may have in respect of the other class members, was struck.

However, the issue has been somewhat muddied by Lupsor Estate v. Middlesex Mutual Insurance Co., [2003] O.J. No. 1038, in which the defendant was sued both as an insurer of the plaintiff and as a proposed representative of the defendant class. The plaintiff had no cause of action against any other member of the proposed defendant class.

Although Justice Roland Haines recognized that there must be a representative plaintiff with a claim against each named defendant, he was not satisfied in the context of a Rule 21 motion that a plaintiff must have a cause of action against each member of a putative defendant class.

Finally, in determining whether a representative plaintiff will "adequately" represent the interests of the class, recent caselaw has indicated the court will be influenced by the ability of the representative plaintiff to bear the costs associated with a class action: See Pearson v. Inco and 1176560 Ontario Limited v.Great Atlantic and Pacific Co. of Canada.

Allan O'Brien is a partner with Nelligan O'Brien Payne LLP in Ottawa, practising in litigation.

[This article is reprinted with permission and first appeared in the June 2003 issue of The Lawyers Weekly.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.