Une décision de la Cour supérieure de l'Ontario alimente le débat sur la définition des groupes

20 décembre 2005

Ce billet est disponible en anglais seulement.

Mr. Justice Cullity of the Ontario Superior Court recently denied certification in Ragoonanan v. Imperial Tobacco Canada Ltd. The claim sought to represent all persons in Canada who suffered loss or injury after October 1, 1987 from fires caused by contact between cigarettes and upholstered furniture or a mattress. The basis of the claim was that the defendant had been negligent in the manufacture of cigarettes that were not "fire safe."

In denying certification, Justice Cullity reviewed in some detail the current state of the law in Ontario concerning how a proposed representative plaintiff attempts to define the class in a proposed class proceeding. Justice Cullity noted that the rules applied by the Ontario courts to determine the appropriateness of a class definition (which is to be used to decide who are to be considered members of the plaintiff class) include that the class definition not be over inclusive nor under inclusive, nor based on any subjective criteria. In addition to these general rules, Justice Cullity noted that the Ontario Court of Appeal, in Chada v. Bayer, had ruled that merits-based class definitions were improper. In that case, the Court of Appeal held that courts considering certification motions should also be wary of a class that can be defined only if it is established that individual class members have a valid claim against the defendant.

Justice Cullity questioned the blanket rejection by the Court of Appeal of merits-based class definitions. He remarked that he saw a clear inconsistency between requiring that the class definition not be overly broad, on the one hand, and the rule that it not be merits-based. He noted that in his view the requirement that the class not be defined based on merits should really mean that the criteria for membership in the class cannot be circular; that is, a class cannot be defined as persons to whom the defendant owes a duty or is liable, if the existence of a duty or questions of liability remain to be decided as common issues. Justice Cullity wondered why a class definition that was based on merits would be inappropriate where the merits component of the class definition related to disputed individual issues.

Justice Cullity expressed the view that that the blanket rejection of class definitions that are at least partly merits-based appears to be based upon the fallacy that one ought to be able to identify all class members at the end of the common issues trial. But, despite calling into question the correctness of the Court of Appeal decision in Chadha v. Bayer, Justice Cullity acknowledged that he was bound to follow it.

On the motion before him, Justice Cullity ultimately held that the definition proposed by the plaintiffs in this case was merits-based, to the extent that its application depended on the proof of damage and the resolution of a number of issues of causation, and was therefore unacceptable.

In spite of some mental gymnastics on Justice Cullity's part to redefine the class within acceptable limits, it just wouldn't work. Although he concluded that this fact alone was sufficient to deny certification, he did consider the other elements of the test for certification.

Justice Cullity accepted most of the common issues proposed by the claimants: whether there was a duty to manufacture "fire safe" cigarettes; whether this duty had been breached; and whether the defendant's conduct warranted the imposition of punitive damages. The determination of contributory negligence on a class-wide basis under the Negligence Act was rejected.

With respect to the preferable procedure requirement, however, Justice Cullity was not persuaded that a class proceeding represented a workable and manageable resolution of the many individual issues, which turned on a significant number of variables. Essentially, no two fires would be alike, and expert testimony was unlikely to be determinative on that point. There were also individual issues raised by some of the defences to the claim, including the smokers' own contributory negligence. Justice Cullity agreed that the proposed litigation plan was "woefully inadequate," especially in terms of addressing individual issues, and it could not be said that a class proceeding would be an efficient or manageable way to advance the litigation. Even if the plaintiffs had satisfied the requirement for an identifiable class, the numerous individual issues strongly militated against certification.

In the end, Justice Cullity would have denied certification on a number of grounds. Although in the result he found treatment as a class action to be inappropriate, his comments in respect of the Ontario approach to class definition will undoubtedly reverberate with defendants and plaintiffs alike, and an appeal can be expected. One thing seems sure: Justice Cullity's comments will add further confusion to an area that has already seen much debate over how to apply seemingly clear rules.

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