Court Proposes “Individual Issues Litigation Plan”

November 20, 2015

On November 16, 2015, Justice Perell released his decision in Lundy v. VIA Rail Canada Inc., 2015 ONSC 7063. As indicated at the outset of the decision, “[t]his mini-sized class action is a test centre for underdeveloped but very important aspects of class action procedure under the Class Proceedings Act, 1992“. A novel aspect of class action litigation, the underlying motion concerned an “Individual Issues Motion” pursuant to s. 25 “to settle a litigation plan for the final stage of a class action.” As Justice Perell made clear:

“[O]ne would be wrong in undervaluing the importance of the litigation plan for the final stage of a class action. The design of the individual issues phase has a substantial impact on achieving the goals of the class action regime of access to justice, behaviour modification, and judicial economy. The matter of designing the individual issues phase of a class proceeding is actually a matter of substantial importance.”

The case concerns the class member passengers’ claims for damages on account of a train derailment in 2012. In prior proceedings, the defendant admitted liability and judgment on certain common issues was entered. Once the litigation plan for the remaining individual issues is agreed upon, the Court will allow offers to settle to be made. However, the parties disagreed about the litigation plan for the individual issues phase and called on the Court to resolve the dispute.

Justice Perell ultimately rejected both the plaintiffs’ and the defendant’s litigation plans and proposed his own, which he directed the parties to consider and attempt to agree upon, failing which the court will then resolve the dispute at a case conference.

Justice Perell proposed a three level process on the facts of this case:

1. Claims under $50,000: a paper-based claim to be decided by a judge of the Superior Court of Justice with no appeal from the decision.

2. Claims between $50,000-$100,000: the procedure would be akin to a summary judgment procedure, with the normal appeal rights.

3. Claims over $100,000: the normal Rules of Civil Procedure would apply, discoveries would be conducted, and a mini-trial would be held.

Justice Perell stressed that the individual issues litigation plan should be akin to a settlement distribution process and should utilize the full powers of s. 25 in creating summary procedures. He also rejected the plaintiffs’ suggestion of a test case for mental distress claims: in his view, if there is a physical injury, mental distress damages are available; but if no physical injury, then a recognized psychiatric illness is required.

As common issues trials are becoming more frequent in Canada, so too will become the resolution of individual issues. This case represents a court’s rare take on the reasonableness of procedures to address these issues. It demonstrates the special, often summary, procedural considerations taken in class actions – clearly depending on the quantum at issue – so as to promote judicial economy, access to justice, and behavior modification. It will certainly serve as a kind of ‘guidepost’ for future individual issue resolution, especially in cases involving physical injuries.

Koskie Minsky LLP was involved in the hearing of the motion on behalf of the plaintiffs.

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