Class Certification:

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• Class Certification
• Narrowing or Expanding?
• Michael Peerless

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Class Certification at the Appeal Level

• Bre - X
• Hollick
• Western Canada Shopping Centres
• Rumley
• Cloud

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Carom v. Bre-X Minerals

• Disasters spawn litigation. Trains collide or
  derail, planes crash, ships sink, lakes and
  rivers become polluted, chemical factories
  explode, ordinary people eat, drink, wear or use
  unhealthy or defective products. People
  sometimes hundreds, even thousands are injured
  or killed by these events. When the crisis
  subsides, some of the victims turn to the courts
  for redress and compensation.
• One of the modern mechanisms for dealing with the
  litigation fallout from major disasters is the
  class action.
• McPherson JA
• Paras 1 and 2

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The Supreme Court Trilogy

• Hollick v. Metropolitan Toronto
• Western Canada Shopping Centres v. Dutton
• Rumley v. British Columbia

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Hollick v. Metropolitan Toronto

• In my view, it is essential therefore that
  courts not take an overly restrictive approach to
  the legislation, but rather interpret the Act in
  a way that gives full effect to the benefits
  foreseen by the drafters.
• McLachlin CJC
• Para 15

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Western Canada Shopping Centres v. Dutton

• Conflicts like these pit a large group of
  complainants against the alleged wrongdoer.
  Sometimes, the complainants are identically
  situated vis-à-vis the defendants. In other
  cases, an important aspect of their claim is
  common to all complainants. The class action
  offers a means of efficiently resolving such
  disputes in a manner that is fair to all
  parties.
• McLachlin CJC
• Para 26

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Rumley v. British Columbia

• That the standard of care may have varied over
  the relevant time period simply means that the
  court may find it necessary to provide a nuanced
  answer to the common question.
• McLachlin CJC
• Para 32

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M.C.C. v. Canada (Cloud)

• an issue can constitute a substantial
  ingredient of the claims and satisfy s.5(1)(c)
  even if it makes up a very limited aspect of the
  liability question and even though many
  individual issues remain to be decided after its
  resolution. In such a case the task posed by
  s.5(1)(c) is to test whether there are aspects of
  the case that meet the commonality requirement
  rather than to elucidate the various individual
  issues which may remain after the common trial.
• Goudge JA
• Para 53

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The Future

• Not much has changed since Bre-X
• If the SCC trilogy did put a chill on
  certification, Cloud has warmed it back up
• The Ontario Court of Appeal has made it clear
  that the certification process is flexible and is
  a low hurdle for plaintiffs to get over
• The Court of Appeal has directly endorsed the
  approach of Justice Cullity, which is very
  similar to the approach of Justices Cumming and
  Winkler
• Class certification is an inclusive remedial
  process and needs to be examined through the lens
  of the goals of the Act

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• Michael Peerless
•  
• SISKINDS LLP
• 680 Waterloo Street
• London Ontario N6A 3V8
•  
• Telephone [phone]
•  
• mike.peerless_at_siskinds.com