The Evolution and Devolution of Aggregate Damages as a Common Issue

AuthorJames Sayce
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.
ccar 10.indb 185 1/19/2015 9:09:55 AM
ccar 10.indb 186 1/19/2015 9:09:55 AM

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