June 2, 2016
The Ontario Court of Appeal recently upheld certification in Good v. Toronto (Police Services Board), 2016 ONCA 250 (Good). Good is a class action concerning mass detentions during the G20 Summit and protests which occurred in Toronto.
The Court of Appeal made two important holdings regarding aggregate damages. The first was to reaffirm that the decision as to whether aggregate damages are available, is a decision for the trial judge. The second was to articulate what may flow from the provision of s. 24(1) which allows a court to determine the “…aggregate or a part of a defendant’s liability”. The Court of Appeal held that:
“…this appears to be a case where the common issues judge may well determine that at least part of TPS’ liability can reasonably be determined without proof by individual class members. As the Divisional Court highlighted, s. 24(1) asks whether the aggregate or a part of the defendant’s liability can reasonably be determined without proof by class members. And, as the Divisional Court observed, it would be open to a common issues judge to determine that there was a base amount of damages that any member of the class (or subclass) was entitled to as compensation for breach of his or her rights.”[emphasis in original]
The above statement by the Court of Appeal affirms that aggregate damages under s. 24(1) are not an all or nothing affair. Awarding a minimum, base or average amount of damages is in line with awards of damages upheld by the Supreme Court of Canada in St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, and Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand,  3 S.C.R. 211. The holding in Good flows from the plain wording of section 24(1) and ensures that if a plaintiff can establish a common wrong there can be a common remedy.