Court sends individual phase litigation plans back to the drawing board

Both sides in a class action case involving VIA Rail have been sent back to the drawing board with a litigation strategy template from the Ontario Superior Court.

Jay StrosbergIt has some calling for greater input from the bench to ensure its goals of access to justice and balancing judicial economy are met.

Calling the matter “a test centre for undeveloped but very important aspects of class action procedure” under the Class Proceedings Act, Justice Paul Perell ruled on an individual issues motion Nov. 16 in Lundy v. VIA Rail.

He gave both parties 30 days to consider and adapt his litigation strategy and if an agreement cannot be made in that time, he ordered a case conference where he will settle the plans.

“One might think that the matter of designing the individual issues phase of a class action is no big deal and that designing the individual issues phase pales in significance to the matters of certification, the common issues trial, and the settlement approval stages of a class action,” Perell wrote.

“However, one would be wrong in undervaluing the importance of the litigation plan for the final stage of a class action. The design of the individual issues phase has a substantial impact on achieving the goals of the class action regime of access to justice, behaviour modification, and judicial economy.”

In the issue before him, the parties could not agree about the litigation plan for the individual issues phase of the action and both presented strategies to the court. The 45 class members were all passengers on a VIA Rail train in early 2012 when it derailed near Burlington, Ont.

In mid-2014, VIA served offers to settle to each individual class member, ranging from $8,000 to $40,000 and the promise VIA would pay members’ legal fees and disbursements in an amount equal to 15 per cent of the settlement amount paid to the class member.

At that time, Perell ordered the parties to prepare individual issues litigation plans, an assessment of costs to date, and judgment on common issues of the certification order. He ruled that once the litigation plans were settled, VIA could then deliver the individual offers to settle. But the sides could not agree on those plans and Perell ordered they try one more time.

Jay Strosberg, partner at Sutts Strosberg LLP, says the individual issues stage of a class action is not common as cases generally settle beforehand. He says when that procedure isn’t agreed upon, there isn’t much guidance on how individual issues should be resolved.

“In one sense it is reassuring that there isn’t a lot of case law on this point, because it means that counsel have generally been able to come up with a plan they both agree with. In another sense, it would be helpful if there were more input from the judiciary about what types of procedures they feel are manageable for handling individual damages claims,” he says.

Strosberg says procedure should allow for class members to submit their claims without huge hurdles, while allowing the defence to also lead evidence and make its case.

“It is a tricky balancing act and one that requires a good deal of practical foresight,” says Strosberg.

“Perell took this opportunity to propose a plan of his own in which he underscored the importance of access to justice and judicial economy, which really should be the focus when coming up with a plan.”

Margaret Waddell, of Paliare Roland Rosenberg Rothstein LLP, says the rules under the CPA are purposefully broad to ensure an efficient process."

“If the parties can’t reach an agreement, then the court has tremendous discretion and latitude in creating a bespoke process for each case. Once a case reaches this stage of the proceeding, the efficiencies of the CPA really come home to roost,” she says.

“The parties can agree on their own efficient process, or if they can’t agree, then the court has the power to craft a procedure that works for the litigants in a way that best meets the objectives of access to justice, efficiency and proportionality for all the remaining parties.”

Update Nov. 24: Quote from Margaret Waddell corrected.

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