Utility at Last for Sections 23 and 24 of the Class Proceedings Act, 1992

• Author: Jennifer M. Lynch
• Pages: 492-518

492

UTILITY AT LAST FOR SECTIONS

23 AND 24 OF THE

CL ASS

PROCEEDINGS ACT, 1992

Jennifer M. Lynch1

A. INTRODUCTION

The Ontario Class Proceedings Act (CPA)2 was first enacted in 1992. Since

that time there have been many certification hearings and a wealth of

jurisprudence written about section 5(1), the test for certification, and

various other sections of the statute. However, until recently two sections

of the CPA, sections 23 and 24, have been noticeably under-used in class

action proceedings. There has also been a dearth of judicial comment

regarding these sections. Section 23 allows for the use of statistical infor-

mation for determining the amount or distribution of a monetary award.

Section 24 states that the court may determine the aggregate or a part of

the defendant’s liability to class members and give judgment.

The recent Ontario Court of Appeal decisions of Markson v. MBNA

Canada Bank3 and Cassano v. Toronto Dominion Bank,4 however, appear to

have given life to sections 23 and 24 of the CPA. As a result of these deci-

sions, the utility of these sections has been articulated for the first time.

In these cases, after finding that potential liability could be determined on

a class-wide basis, the Court of Appeal held that sections 23 and 24 could

be used to overcome the difficulty in assessing individual damages for

class members, essentially defeating the defendant’s arguments that the

proposed class action did not have any common issues and was not the

preferable procedure. Certification was granted by the Court of Appeal in

both of these cases. At first instance in both of these actions, the motions

judge refused to grant certification on the basis that damages would have

1 Ms. Lynch is a partner of the firm Tough & Podrebarac LLP, Toronto. This

paper was written with the assistance of Alex Dirlis, an associate at the firm.

2 S.O. 1992, c. 6 [CPA].

3 (2007), 85 O.R. (3d) 321 (C.A.), rev’g (2005), 78 O.R. (3d) 39 (Div. Ct.), rev’g

(2004), 71 O.R. (3d) 741 (S.C.J.) [Markson].

4 [2007] O.J. No. 4406 (C.A.) [Cassano].

VOL UME 4, No 2, march 2008 493

to be assessed on an individual basis, which would be very time-consum-

ing and costly based on the large size of the class, and accordingly found

that a class proceeding would not be the preferable procedure.

The purpose of this article is to review some of the previous judicial

considerations of sections 23 and 24 of the CPA, the decisions of Markson5

and Cassano,6 and subsequent decisions dealing with these sections, and

to opine on Markson and Cassano’s ultimate effect with respect to sections

23 and 24 of the CPA.

B. SECTIONS 23 AND 24 OF THE

CPA

The relevant portions of sections 23 and 24 of the CPA are as follows:

23(1) For the purpose of determining issues relating to the amount or

distribution of a monetary award under this Act, the court may admit as

evidence statistical information that would not otherwise be admissible

as evidence, including information derived from sampling, if the infor-

mation was compiled in accordance with principles that are generally

accepted by experts in the field of statistics.

24(1) The court may determine the aggregate or a part of a defendants’

liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class mem-

bers;

(b) no questions of fact or law other than those relating to the

assessment of monetary relief remain to be determined in order to

establish the amount of the defendant’s monetary liability; and

(c) the aggregate or a part of the defendant’s liability to some or

all class members can reasonably be determined without proof by

individual class members.

(2) The court may order that all or a part of an award under subsection

(1) be applied so that some or all individual class members share in the

award on an average or proportional basis.

(3) In deciding whether to make an order under subsection (2), the

court shall consider whether it would be impractical or inefficient to

identify the class members entitled to share in the award or to determine

the exact shares that should be allocated to individual class members.

5 Above note 3.

6 Above note 4.