Navigating the Uncharted Territory of Individual Issues Trials[i]
Introduction
There are two stages to a class proceeding: the common issues stage, and the individual issues stage.[ii] While the jurisprudence on the common issues stage (including certification and common issues trials) is well-developed, settlement usually occurs before the individual issues stage is reached. For judges, counsel, and litigants, therefore, this last phase of a class proceeding presents uncharted territory.[iii] Section 25 of the Ontario Class Proceedings Act gives a very broad ambit of judicial discretion for creating procedures at the individual issues stage. This discretion means that there can be some uncertainty for litigators and judges as to the procedures that are available or appropriate.[iv] This paper addresses some of this uncertainty.
Key Considerations
- Status of class members. CPA s 25 refers to “individual class members”, so they are not in the position of purely individual litigants.[v] However, class members have rights and litigation autonomy as individuals, because they are personally exposed to adverse costs,[vi] and have individual rights of appeal from any determinations.[vii] Several decisions also state that individual class members have the right to choose their own counsel.[viii]
- Guiding objectives. These include the underlying objectives of the CPA (access to justice, judicial economy, and behaviour modification),[ix] as well as the objectives of CPA s 25(3).[x] Proportionality is central at the individual issues stage.[xi] A trauma-informed approach should also be pursued.
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