The Rules of Civil Procedure need not be followed for individual issues trials according to 2008’s Lefrancois v. Guidant Corp. However, although the CPA contemplates dispensing with and authorizing special procedural steps such as those relating to discovery, and authorizing special rules, including rules relating to the admission of evidence and means of proof, procedures for resolving the individual issues must nevertheless be in accordance with the civil standard of proof, i.e. on a balance of probabilities.
Of particular note are the comments made by Ontario Chief Justice Warren Winkler in Fulawka v. Bank of Nova Scotia, where he stated at the individual issues stage the presiding judge would have the option of considering statistical information derived from random sampling in calculating the quantum of individual class members’ entitlement to monetary relief.
In Quebec, Chapter III, art. 1037 of the Quebec Code of Civil Procedure contemplates the resolution of individual issues following a common issues trial of a class proceeding. Article 1039 permits the fashioning of a procedure that includes different modes of proof and special procedures.
The 1982 Ontario Law Reform Commission “Report on Class Actions” provided some guidance with respect to the latitude available to the trial judge pursuant to s. 25 of the CPA. The report said a judge who determines the common questions may have broad discretion to fashion proceedings for the resolution of individual issues.
In particular, the commissioners stated a court should be authorized to dispense with any procedure it considers unnecessary, and to direct special procedures where necessary. In fashioning a proceeding, a judge should be required to order the simplest, least expensive, and most expeditious method of determining the issues that is consistent with justice to the members of the class, the defendant, and the representative plaintiff, including dispensing with any procedure it considers unnecessary and directing special procedures regarding matters as discovery, admission of evidence, and means of proof. This is reflected in the statute.
The report identified three factors that would influence a court in deciding what procedures should be employed to determine individual issues/how rigorously the Rules of Civil Procedure should be followed: the complexity of the issues, the size of the claims of the class members, and the number of adjudications that are necessary.
The report also recommended the court be able to appoint one or more people to conduct individual proceedings by way of inquiry, and report for confirmation of their recommendation to the court. The report contains no direction about when an order under s. 25 is actually sought.
In Western Canadian Shopping Centres Inc. v. Dutton, Chief Justice Beverley McLachlin stated that generally, individual issues will be resolved in individual proceedings. However, as under the legislation in Ontario, “a court may specify special procedures that it considers necessary or useful.”
In Ramdath v. George Brown College of Applied Arts and Technology at the trial of common issues, the plaintiffs were successful in establishing some elements of negligent misrepresentation, but further evidence was still needed to establish liability, namely evidence of individual reliance. Justice Edward Belobaba held this question would be addressed in the next phase of the litigation.
Likewise, in Authorson (Litigation guardian of) v. Canada (Attorney General), after the plaintiffs’ successful motion for summary judgment, former Ontario Superior Court justice John Brockenshire held the questions of damage claims and further steps in the action would have to be addressed in a case conference. Brockenshire provided that “the broad powers of the court under the CPA, ss. 24, 25, and 26, to among other things make aggregate, average or proportional assessments and direct payment for the general benefit of class members.”
In Cassano v. Toronto-Dominion Bank, Winkler stated the CPA “confers broad jurisdiction on the common issues trial judge to fashion procedures to be followed where, among other things, damages cannot be assessed in the aggregate.”
He further stated if the individual approach to assessing damages is deemed to be appropriate, the assessment should still be straightforward and cost-effective.
In Fulawka v.The Bank of Nova Scotia, Winkler discussed the power of the trial judge to fashion an effective procedure to adjudicate individual issues. He said a common issues trial judge may dispense with procedural steps and authorize special rules relating to the means of proof it considers appropriate. In particular, a presiding judge may use statistical information derived from random sampling or “other methods” to calculate the quantum of individual class members’ entitlement to monetary relief.
Winkler also stated in Fulawka that s. 25 contemplates “the court may direct that individual claims to unpaid overtime be determined through procedures other than individual trials.” Finally, he said it is the common issues trial judge who would determine whether individual assessments are necessary, and if so, the manner in which those assessments should be conducted.
In 2008’s Lefrancois v. Guidant Corp., former Superior Court justice Maurice Cullity held the jurisdiction of the trial judge is not constrained by the contents of the litigation plan presented by the plaintiffs for the purpose of certification. Moreover, Cullity rejected the proposition that individual issues trials need to be conducted under the Rules of Civil Procedure.
In Tiboni v. Merck Frosst Canada Ltd., the same judge held the power and discretion conferred to the trial judge pursuant to s. 25 should nevertheless be used to resolve the individual issues in accordance with the civil standard of proof.
In Barrette v. St. Lawrence Cement Inc., Supreme Court of Canada justices Louis LeBel and Marie Deschamps described the individual claims procedure outlined by the trial judge after a finding of liability. This case concerned dust, noise, and odours emitting from the defendant and falling on the property of class members. The trial judge divided the class into four zones depending on the intensity of damages. The trial judge then ordered recovery be subject to an individual claims procedure but assessed the amount to be awarded to each member using an average determined for each zone. In its 2008 decision, the Supreme Court held this was an appropriate mechanism, given the difficulty of assessing environmental problems and annoyances.