What’s Unfair is Unfair: Judge’s Discretion to Reformulate Agreed Common Issues Has Its Limits

March 7, 2018

It is not often that a complaint that a party was denied procedural fairness succeeds. In Levac v. James, 2017 ONCA 842, the Ontario Court of Appeal considered whether the defendants’ rights to procedural fairness could be compromised where the court, of its own motion, departed from the strict wording of a mutually agreed formulation of the common issues without asking the parties for further submissions (written or oral).

The question before the Court of Appeal was whether – and if so, when – reformulation of a common issue that the parties had agreed upon constitutes a breach of procedural fairness.

Agreed Common Issues

The plaintiff brought a motion seeking certification and partial summary judgment against the defendant in a class action. It alleged, inter alia, that the defendants had negligently caused a bacterial infection outbreak. There was a substantive dispute between the parties as to the proper formulation of the common issues. The parties advanced the following alternative formulations of the common issues for certification:

  • What is the scope of the duty of care owed by the Defendants in relation to infection prevention and control across the entire population of Class Members?
  • Whether any of the Defendants’ invariable practices breached the standard of care in relation to infection prevention and control and if so, in what way or ways.

To resolve the dispute, the motion judge proposed a third formulation at the oral hearing of the certification motion:

  • Whether the defendants breached the standard of care required for infection prevention and control practices, and
  • In what ways, if any, did the Defendants’ routine invariable IPAC practices breach the standard of care for infection control practices?

This two-part formulation was accepted by all parties.

Motion Judge’s Reformulation

The motion judge certified the class action against all defendants and granted summary judgment against one of them. After the written reasons were released, the defendants alleged that the motion judge had departed from this agreed formulation in a manner that prejudiced their position. The reasons for judgment certified the following question:

Did any defendant breach his, her, or its duty of care with respect to the design and/or performance of the Defendants’ invariable IPAC Practice?

The defendants objected to the formulation in the reasons for decision, on the grounds that (i) certifying a question devised by the motion judge himself, (ii) without the benefit of submissions from counsel on the proposed formulation, (iii) after the conclusion of the hearing of the summary judgment motion that proceeded under a different certified common issue, is procedurally unfair. The defendant also advanced a series of substantive objections to the formulation.

Court of Appeal’s Analysis

The Court held that the motion judge erred by failing to invite the parties to make further submissions, for three fundamental reasons. First, because the motion judge recognized that the new formulation was substantively different from the compromise position. (para. 41) Second, because the defendant was denied the opportunity to contest certification of a proceeding premised on that formulation. (paras. 42-44) Third, the Court of Appeal stressed that “an appeal is not a trial de novo.” (para. 45) For that reason, the opportunity to appeal the new formulation does not provide an adequate remedy “for the lack of opportunity to convince the motion judge against certifying that issue at first instance.” (para. 45)

The Court of Appeal held that “a certification judge may, in some circumstances, depart from the wording of a common issue that the parties have agreed upon and proposed.” (para. 45) The “relevant question” for the Court of Appeal was “not whether the motion judge had discretion to reformulate the common issue, but whether that discretion was appropriately exercised in this case.” In the result, the Court of Appeal held that the defendant was entitled to a new hearing on certification and on summary judgment before a different judge. (paras. 46-47)


Defendants should carefully consider, after consenting to certification based on a particular formulation of common issues, whether the endorsement decision reflects the agreed formulation. However, as Levac demonstrates, not every such reformulation will violate procedural fairness.

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