INTRODUCTION
A recent certification decision of the Ontario Superior Court of Justice provides important guidance on the predominance requirement introduced by the 2020 amendments to Ontario's Class Proceedings Act, 1992 ("CPA")[1]. In Pedersen v. Advanced Bionics LLC ("Pedersen")[2], the Court certified a proposed product liability class action involving cochlear implant devices but significantly narrowed both the proposed class and the damages issues that could proceed through the class action framework.
Pedersen is particularly noteworthy because it is one of the first decisions to meaningfully apply the predominance requirement following Justice Perell's analysis in Banman v. Ontario, 2023 ONSC 6187 ("Banman").[3] In doing so, Justice Morgan provides practical meaning to what predominance requires and how courts should balance common and individual issues at certification.
As discussed below, Pedersen is significant because the Court used the predominance requirement to reshape the proceeding. The decision suggests that Ontario courts may increasingly view predominance as an active tool for refining proposed class proceedings rather than merely a basis for granting or refusing certification.
BACKGROUND
The 2020 amendments to the CPA introduced two additional requirements for certification. Pursuant to s. 5(1.1), a court must be satisfied that the common issues predominate over individual issues and that a class proceeding is superior to all reasonably available means of determining entitlement to relief or addressing the impugned conduct.
One of the leading Ontario decisions interpreting predominance is Banman, an institutional abuse class action. In Banman, Justice Perell held that predominance is satisfied when the common issues, considered collectively, predominate over the individual issues in the litigation.[4] Although Banman provided an analytical framework, relatively few Ontario decisions have considered how predominance should be applied in practice, particularly in personal injury and product liability class actions.
Pedersen provided Justice Morgan with an opportunity to consider that question directly.