Issues of Evidence in a Class Action: An Introduction and Overview

• Author: Mr. Justice Warren K. Winkler and Harvey T. Strosberg, Q.C.
• Pages: 57-217

Issues

of

Evidence

in a

Class Action:

An

Introduction

and

Overview

Mr.

Justice

Warren

K.

Winkler

and

Harvey

T.

Strosberg,

Q.C.*

A.

INTRODUCTION

The

Ontario

Class

Proceedings

Act,

19921

is a

remarkable piece

of

legisla-

tion, opening

up a

world

of

endless opportunity

to

countless thousands

of

individuals

for

whom,

hitherto,

resolution

of

their grievances

was an

unreachable goal.

But

brilliant

and

innovative

as the

statute

is, it can

pose daunting problems

for

lawyers

who

dare

to

venture

in. The

mar-

shalling

of

evidence

in a

class proceeding requires particular delicacy

and

skill, especially

at the

most

critical

early stage, that

of the

hearing

of

the

certification

motion. Whatever side

one

represents,

plaintiff

or

defendant,

success

on the

certification

motion

is

unattainable

to

anyone

who

fails

to

apprehend

the

core principles

and

objectives

of the

CPA

and

who

fails

to

tailor

the

evidence

to

them.

It is

thus

appropriate

to

begin

with

a

short summary

of the

policy considerations that underlie

and

inform

virtually every essential aspect

of the

statute.

*

Of the

Superior

Court

of

Justice

and

Sutts,

Strosberg

LLP,

respectively.

1

S.O.

1992,

c. 6

[CPA].

58 MR.

JUSTICE

WARREN

K.

WINKLER

AND

HARVEY

T.

STROSBERG,

Q.C.

B.

THE

GOALS

OF THE CPA

The

arguments made

for

passing legislation

in

Ontario governing class

proceedings,

by

both

the

Ontario

Law

Reform

Commission2

and the

Attorney

General's Advisory Committee

on

Class Action

Reform,3

hinged

on

three advantages that class proceedings, when used correct-

ly,

will have over individual actions: more

efficient

judicial

economy;

improved access

to

justice;

and

behaviour modification. McLachlin

C.J.C.

described each

benefit

this way:

First,

by

aggregating similar individual

actions,

class actions serve

judicial

economy

by

avoiding unnecessary duplication

in

fact-finding

and

legal analysis.

The

efficiencies

thus generated

free

judicial

resources that

can be

directed

at

resolving other conflicts,

and can

also

reduce

the

costs

of

litigation both

for

plaintiffs

(who

can

share litiga-

tion costs)

and for

defendants (who need litigate

the

disputed issue

only once, rather than numerous times).

Second,

by

allowing

fixed

litigation costs

to be

divided over

a

large number

of

plaintiffs,

class actions improve access

to

justice

by

making economical

the

prosecution

of

claims that would otherwise

be

too

costly

to

prosecute individually. Without class actions,

the

doors

of

justice

remain closed

to

some

plaintiffs,

however strong their legal

claims.

Sharing costs ensures that injuries

are not

left

unremedied.

Third, class actions serve

efficiency

and

justice

by

ensuring that

actual

and

potential wrongdoers

do not

ignore their obligations

to the

public.

Without class actions, those

who

cause widespread

but

individ-

ually

minimal harm might

not

take into account

the

full

costs

of

their

conduct, because

for any one

plaintiff

the

expense

of

bringing suit

would

far

exceed

the

likely recovery. Cost-sharing decreases

the

expense

of

pursuing legal recourse

and

accordingly deters potential

defendants

who

might otherwise assume that minor wrongs would

not

result

in

litigation.4

See

Ontario

Law

Reform

Commission,

Report

on

Class

Actions

(Toronto:

Min-

istry

of the

Attorney

General,

1982)

at

118-22

and

140-46.

See

Ontario

Attorney

General's Advisory

Committee

on

Class

Action

Reform

Report

of

the

Attorney

General's

Advisory

Committee

on

Class

Action

Reform

(Toronto:

The

Committee, 1990)

at

17-18

[Report

on

Class

Action

Reform].

Western

Canadian

Shopping

Centres

Inc.

v.

Dutton,

[2001]

2

S.C.R.

534 at

paras.

27-29

[Western

Canadian

Shopping].

Issues

of

Evidence

in a

Class

Action

59

Particularly

during

the

court's "preferable procedure"

analysis,

these three benefits will have especial importance.

But at any

point

in

the

certification

process

the

evidence should

be

focused,

if

possible,

on

one or the

other

of

these three goals.

At the

same time, evidence going

strictly

to the

merits

of the

action should

be

avoided.

C.

THE

FORM

OF THE

EVIDENCE

ON A

CERTIFICATION

MOTION

The

certification

motion

is

similar

to all

other motions before

the

court

in

the

sense that

affidavit

evidence and/or evidence

from

witnesses

summonsed

is

tendered

by the

parties.

The

CPA, however, provides

some

flexibility

to the

court

to

admit additional

forms

of

evidence

under

section 5(4), allowing

the

court

to

adjourn

the

proceeding

at any

time

to

admit

further

evidence.

The

Report

on

Class

Action

Reform

states that

the

"plaintiff

shall

and

the

defendant

may

serve

and

file

one or

more affidavits"

on the

certifi-

cation motion,

but

that

the

evidence should

be

confined

to the

section

5(1)

criteria.5

Commenting

on the

report, McLachlin C.J.C. said:

"In my

view

the

Advisory Committee's report appropriately requires

the

class

representative

to

come

forward

with

sufficient

evidence

to

support cer-

tification,

and

appropriately allows

the

opposing party

to

respond with

evidence

of its

own."6

While presenting their evidence,

all

parties must

keep

in

mind that

the CPA is a

procedural statute

and

that

the

certifica-

tion stage

is not a

ruling

on the

merits.7

The

traditional rules

of

admissibility

apply

to

affidavits

filed

on

cer-

tification

motions

and

they should

be

drafted

carefully

to

avoid being

struck

for

being

improper.8

The

affidavit

evidence

may

contain state-

ments

as to the

deponent's

information

and

belief,

if the

source

of the

information

and the

fact

of

belief

are

specified

in the

affidavit.9

The

size

of the

record

and the

type

of

evidence

filed

will naturally

depend

on the

type

of

class

and the

type

of

action sought

to be

certified.

5

Report

on

Class

Action

Reform,

supra

note

3 at 31 and 33.

6

Rollick

v.

Toronto

(City),

[2001]

3

S.C.R.

158 at

para.

22

[Hollick].

7

Ibid,

at

para.

16;

Caputo

v.

Imperial

Tobacco

(1997),

34

O.K.

(3d)

314 at 320

(Gen.

Div.)

[Caputo].

8 See

Chopik

v.

Mitsubishi

Paper

Mills

Ltd.

(2002),

26

C.P.C.

(5th)

104 at

para.

26

(S.C.J.)

for a

summary

of the

traditional

rules

affecting

affidavit

evidence.

9

Rule

39.01(4)

of

Rules

of

Civil

Procedure

(Ont.),

R.R.O.

1990 Reg. 194.