Common issues don’t have to outweigh individual ones, court rules

Common issues don’t have to outweigh individual ones in order for a class action to be the preferable procedure, the Ontario Superior Court has ruled.

In a decision in Barwin v. IKO on July 19, Justice Deena Baltman had the task of certifying a class action related to allegedly defective shingles. Ottawa resident Kevin Barwin, the representative plaintiff, complained his organic shingles had begun leaking, falling apart, and breaking down 12 years after installing them. Alberta corporation IKO Industries Ltd. had manufactured them.

While 2,000 putative class members have contacted class counsel, the defendants opposed certification in part on the basis that individual issues would outweigh and overwhelm the common ones. Those individual issues, they argued, included determining which shingles failed because of a defect and which ones failed due to other causes; calculating pro-rated labour expenses that would vary by homeowner; and which shingles would be the replacement since the company is no longer making organic ones.

Baltman, however, took issue with those assertions. “As our Court of Appeal noted in Cloud v. Canada (Attorney General), the drafters of the [Class Proceedings Act] specifically rejected the requirement that common issues predominate over the individual issues in order for the class action to be the preferable procedure,” she wrote.

“The critical question to be asked ‘is whether, viewing the common issues in the context of the entire claim, their resolution will significantly advance the action.’ In my view, the answer her is undoubtedly ‘yes.’”

In doing so, Baltman referred to the conclusions of an expert retained by the plaintiffs who suggested that, despite the defendants’ assertions that there were many different shingle designs over the years, the results of his analysis showing problems with them were consistent across product lines. None of the allegations have been proven in court.

In the end, Baltman certified the class action and rejected the notion that another procedure would be preferable. “Moreover, any notion of judicial economy would be destroyed if each potential class member were required to proceed individually against the defendants and prove the same negligence and consumer protection claims,” she wrote.

“Multiple proceedings and the consequent waste of judicial resources is now a huge concern not just in the central west region of Ontario — one of the busiest in Canada — but throughout the country.”

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