More in the Norm? The state of the law on s. 24 of the CPA

Overview

A decade ago, Justice Belobaba wrote:

Aggregate damage awards should be more the norm, than the exception. Otherwise, the potential of the class action for enhancing access to justice will not be realized.[1]

Section 24 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”) allows such awards where: (a) monetary relief is claimed on behalf of some or all class members; (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.

Not too many cases have had the opportunity to realize this “norm”. The judgment in Ramdath v. George Brown College, 2014 ONSC 3066 was the first trial award of aggregate damages in Ontario. The plaintiffs had been successful in demonstrating a breach of the Consumer Protection Act, S.O. 2002, c. 30 in the college’s misrepresentation that its post-graduate program provided students with the opportunity to obtain certain designations. Justice Belobaba identified three criteria to consider in deciding whether to make an award under s. 24(1), which the Court of Appeal then explicitly upheld:

1) whether the non-individualized evidence presented by the plaintiff is sufficiently reliable;

2) whether use of the evidence will result in unfairness or injustice to the defendant, such as overstatement of its liability; and

3) whether the denial of an aggregate approach will result in a “wrong eluding an effective remedy” and thus a denial of access to justice.[2]

Justice Belobaba went on to assess the amounts under a damages formula agreed to by the parties. He determined direct costs paid and the residual market value of the diploma without the designations,[3] but found other amounts such as foregone income could not be determined in the aggregate due to inaccurate assumptions and sampling in the plaintiff’s expert evidence.[4]

Two decisions released this year have demonstrated the continuous applicability of these principles, and particularly the value of the third criterion.

Two Recent Decisions

Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642 concerned a class action brought by pharmacist franchisees relating to Shoppers’ retention of “professional allowances” paid by generic drug manufacturers. On the summary judgment motion, Justice Perell found Shoppers liable for breach of contract to some of the class. The evidence in this case demonstrated the amount Shoppers received in payments,[5] data for individual damage calculations, and even an estimate of the amount that individual claims may be worth.[6] However, Justice Perell found that an aggregate damages award was not feasible, finding methodological errors in the calculation of aggregate liability.[7] The plaintiff was successful on the ground of appeal concerning the amount of professional allowances received,[8] but the Court of Appeal also deemed the case unsuitable for aggregate damages.

Justice Thorburn agreed that the expert evidence contained errors,[9] and that idiosyncrasies and data limitations impede aggregate assessment,[10] but it was in relation to the third criterion asking whether denial of an aggregate award would mean denial of access to justice, that she specifically distinguished this case from Ramdath:

Here, counsel estimates there are 500 to 800 members of the Ontario Class. Given the size of the class and the amount of money at issue, this is not a case like Ramdath where the disputed amounts (i.e. $400 for textbooks, travel expenses, etc.) are clearly disproportionate to the cost of recovery.[11]

A more recent case came to a different conclusion. Granger v. Ontario, 2024 ONSC 6503 concerned a class action on the province’s retention of DNA profiles from innocent persons. Justice Akbarali granted the action in breach of Charter s. 8 but dismissed the claim for intrusion upon seclusion. The plaintiffs here sought Charter damages, which are to serve unique purposes. Indeed, no actual harm to the class members had been established, but there was a need for deterrence and vindication.[12] There were no issues with damages calculation methodology. Justice Akbarali determined that the common conduct of the defendant in retaining the DNA profiles provided the foundation for an aggregate award, and that there was sufficient evidence of the minimum class size to determine the defendant’s liability.[13] Based on the finding that $1,000 per class member is an appropriate and just damages award, and the minimum number of class members, the court ordered an aggregate award of over $7 million.[14]

Justice Akbarali declined to direct the defendant to confirm true class size, citing concern about the “disproportionate expenditure of resources to try to get a more accurate measurement," and the rarity of a 100% take-up rate.[15] On this point, the cost of further inquiries on damages was also taken into consideration.

Takeaways

These two recent decisions confirm that Ramdath is still authoritative on aggregate damages, and the reliability of non-individualized evidence continues to be an important factor in the courts’ determination under s. 24. However, it is that third criterion that draws a line between cases where further inquiries are appropriate, and cases where they would hinder access to justice.

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