Grozelle v Corby Spirit: The Ontario Superior Court Confirms Stricter Test for Preferability and Finds Class Action Not Preferable

  • March 25, 2024
  • Alexandra Lawrence & Sarah Whitmore

In Banman v. Ontario, 2023 ONSC 6187 (“Banman”), the Ontario Superior Court of Justice interpreted for the first time the new provisions under the preferable procedure branch of the certification test in the amended Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). The Court confirmed that the addition of section 5(1.1) to the CPA, which set out the predominance and superiority requirements, imposed a stricter test for preferability, but pondered how much stricter the new test was.

In the recent decision of Grozelle v. Corby Spirit and Wine Limited, 2023 ONSC 7212 (“Corby”) the Court has affirmed the impact of the CPA amendments as imposing a stricter, more rigorous certification test. The decision is also the first time the amended preferable procedure criterion has not been met.


The proposed class action arose out of emissions emitted from whisky aging warehouses in Lakeshore, Ontario which were purported to have caused the growth of “whisky fungus” and damage to the properties of the proposed class. The proposed representative plaintiffs asserted causes of action in negligence and negligent misrepresentation on behalf of a class of people who had lived or were living within a certain geographic zone within the municipality of Lakeshore since the 1980s.

The defendant Corby Spirit and Wine Limited argued it managed the whisky aging warehouses at issue between September 2006 and June 2020, not from 1980 to present as alleged by the plaintiffs. The defendant also argued there was no evidence that the emissions from the warehouses caused the black mold-like substances that the plaintiffs claimed had been accumulating on their properties, and instead cited other potential causes.

Certification Denied

The Court in Corby declined to certify the action as a class proceeding on the basis that it had not been properly pleaded, there was no basis in fact to conclude the alleged common issues existed, and the individual issues predominated.