The Unworkability of the Workable Methodology Standard

• Author: Kate Boyle and Nicholas Hooper
• Pages: 93-115

93

The Unworkability of the Workable Methodology

Standard

Kate Boyle and Nicholas Hooper

:The prevailing approach to the workable methodology stan-

dard — a threshold requirement whereby putative representative plain-

tif‌fs must demonstrate there is a “workable methodology” for assessing

general causation at certif‌ication — does not provide clear, consistent

guidance on the meaning or application of “workability,” or the evidence

representative plaintif‌fs must adduce to overcome this requirement. As

a result, Canadian courts have diverged on the question of whether one

must demonstrate an existing, empirically tested methodology to satisfy

this evidential standard, or whether one need only demonstrate a cred-

ible, plausible methodology, which — though not tested yet — could allow

for the issue of general causation to be determined on a class-wide basis.

The current state of the law is particularly concerning in the context

of class proceedings alleging novel mechanisms of harm (like toxic torts),

which are increasingly important legal mechanisms to hold tortfeasors

accountable in today’s world of mass production, technological advan-

ces, and the megacorporation. The workable methodology standard has

far-reaching implications, as a court’s insistence on a tested methodology

(if that is indeed the standard) creates a scenario of quasi-legal-immunity

for defendants who expose individuals to unstudied or prohibited chem-

icals and thus presently unstudied risks of injury.

This paper begins by tracing the forked paths of the workable meth-

odology standard in Canadian jurisprudence before of‌fering a critique of

insistence on empirical proof of causation, especially at certif‌ication. It

concludes by suggesting a principled path forward for def‌ining “workable

methodology” in an equitable, predictable manner that is consistent with

the objectives of class proceedings, the evidentiary standard at certif‌ica-

tion, and the most basic tenets of tort law.

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