The spectre of future individual issues is invoked regularly to oppose certification of a class proceeding. Recent amendments to the Class Proceedings Act, 1992 now require that common issues “predominate” over individual issues in order to certify a class proceeding. This predominance requirement will serve to intensify attention on potential future individual issues at certification. Despite this focus on individual issues, Ontario has little judicial authority on individual issues litigation after the common issues. Authority to date shows that individual issues litigation can be structured to ensure that individual questions will be determined in accessible and effective ways, even in large, complex proceedings.
Recently in Brazeau v. Canada (Attorney General), 2020 ONSC 7229 and Reddock v. Canada (Attorney General), 2020 ONSC 7232, Justice Perell released a joint show cause decision outlining a proposed procedure for the determination of individual issues after the common issues were determined by way of summary judgment.[i] Following the show cause decision, a final joint decision on individual issues procedures was released on March 3, 2021, with only editorial changes to the original individual protocol.[ii] Justice Perell’s decision is only the second decision in Ontario where the court has been tasked with setting an individual issues protocol after a merits determination. Previously, Justice Perell also determined a contested individual issues motion in Lundy v. VIA Rail Canada Inc., 2015 ONSC 7063.
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