The Unworkability of the Workable Methodology Standard

AuthorKate Boyle and Nicholas Hooper
The Unworkability of the Workable Methodology
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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