In Cavanaugh v. Grenville Christian College, 2022 ONSC 5405, Justice Perell of the Ontario Superior Court interpreted and applied s. 25 of Ontario’s Class Proceedings Act, 1992 (the “CPA”), which authorizes courts to establish procedures for the determination of individual issues in class proceedings. In this case, the Court used s. 25 to address a unique factual problem, what it called the “elephant in the courtroom”: the defendants were judgment proof and had erratic insurance coverage for the twenty-five year class period, meaning that a class member’s ability to recover could depend entirely on whether their claim fell within a year that the defendants had insurance coverage. The decision offers guidance on the scope and nature of the Court’s powers under s. 25.
Key Takeaways
- To address an “unfairness issue” that would prevent some class members from being able to recover damages following the determination of their individual issues, the Court relied on s. 25 of the CPA to devise a novel solution, departing from the Litigation Plans proposed by the parties.
- In setting the procedure for resolution of the individual issues, the Court held that s. 25 enabled it to address perceived fairness and distribution challenges by exercising a supervisory role akin to the court’s role on settlement to ensure the distribution served the best interests of the class as a whole.
- The Court also emphasized that fairness is a two-way street: while s. 25 is a flexible tool, it cannot be used to overstate a defendant’s liability in the name of reaching a fair result for the class.
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