The Evolution and Devolution of Aggregate Damages as a Common Issue

• Author: James Sayce
• Pages: 185-202

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THE EVOLUTION AND

DEVOLUTION OF AGGREGATE

DAMAGES AS A COMMON ISSUE

James Sayce

Abstract: The certif‌ication of aggregate damages is an important

step in pushing a class 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 certif‌ied, pressure on the defendant is re-

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

if the class is 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 interpretation,

resulting in a wider array of scenarios where aggregate 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 available 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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ccar 10.indb 1861/19/2015 9:09:55 AM