The Ontario Court of Appeal has said no to the plaintiffs in a class action who sought to amend the list of common issues some 11 years after the class action was certified.
Carom v. Bre-X Minerals Ltd. was certified as a class action by Winkler, J. in 1999: 44 O.R.(3d) 173 (S.C.). The certification order contemplated a two stage process. In the first stage, a common issues trial would decide questions of liability. In the second stage, individual trials would be required to determine the claims of each class member, and in particular to determine issues of causation, reliance, and damages.
In November of 2010, the representative plaintiffs moved for an order amending the list of common issues by adding 2 questions to the 15 issues that had been certified by Mr. Justice Winkler in 1999.
The proposed new common issues raised questions of constructive trust, under which the plaintiffs sought an accounting and restitutionary remedies against the defendants. Counsel for the plaintiffs had decided that the remedies of constructive trust and restitution might be more effective than the remedy of damages, and that it would be more efficient to deal with these matters in the common issues trial rather than in the second stage of the trial, which was to focus on remedies.
The judge hearing the motion concluded that since the common issues had been settled in 1999, it would be unfair in 2010 to add two new questions to the common issues trial. The Court of Appeal agreed:
“In the end, we see no reason to interfere with the motion judge’s decision that it was unfair to add a common issue for a potential new cause of action at this late stage of these class proceedings. His decision permits the appellants to seek remedies that are expressly sought in their statement of claim, but it keeps that issue where it has always been, in the second stage of the proceedings….”
Although the action had been pending a long time it was not at a particularly advanced stage as the parties had been awaiting the outcome of criminal proceedings against one of the defendants. Nevertheless, the case does indicate that the court will not be receptive to an attempt to change the way a class action is framed unless the party seeking the change moves early in the proceedings.
Link: Carom v. Bre-X Minerals Ltd., 2011 ONCA 392
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