The Evolution and Devolution of Aggregate Damages as a Common Issue

• Author: James Sayce
• Pages: 185-202

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THE EVOLUTION AND

DEVOLU TION OF AGGREGATE

DAM AGES AS A COMMON ISSUE

James Sayce

Abstract: The certif‌ication of aggregate damages is an important

step in pushing a clas s action toward resolution. If aggregate

damages are certif‌ied, the common issues trial represents a

f‌igurative “gun to the head” of the defendant. If aggregate

damages are not cert if‌ied, pressure on the defendant is re-

lieved, and the clas s is faced with a far less cert ain path. Even

if the class i s successful at the common issues trial, individ-

ual damages hearings may devolve into complex and lengthy

miniature trials, where access to justice and judicial eff‌i-

ciency are sacrif‌iced.

Over the past decade, Canadian courts have been of two

mind s when it comes to aggregate damages. Initi ally, courts ap-

plied a strict interpretation of section 24 of the Class Proceedings

Act, 1992, but subsequently they relaxed their inter pretation,

resulting in a w ider array of scenarios where agg regate dam-

ages were certif‌ied. More recently, courts have returned to the

more restrictive approach. This recent trend has led to some

potentially unex pected results and a situation where aggregate

damages are avai lable only in the clearest of cases. This trend

represents an in f‌lexible and non-purposive reading of the CPA ,

and appellate guida nce is needed.

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