May 23rd, 2012
When Justice Perell refused to certify Cavanaugh v. Grenville Christian College, 2012 ONSC 2995, because a class proceeding was not preferable, he drew on the powers of the Class Proceedings Act, 1992 (the “CPA”) to allow the action to continue with a new litigation plan. Justice Perell discussed as an efficient and productive model the alternate procedure adopted in Hudson v. Austin, 2010 ONSC 2789. This model arose where class proceedings were commenced with respect to personal injury claims and then devolved to 99 simultaneous case managed actions.
In Hudson, the discontinuance of the class action was suspended for 4 months to permit any putative class members to commence individual actions. The Notice of Discontinuance was also posted on the plaintiff's website and provided to media outlets. Looking back on Hudson in Cavanaugh, Justice Perell found that practically, patients “were provided with an opportunity to opt-in to a case-managed group of cases or what might be called a group of actions rather than a class proceeding.”
Similarly in Cavanaugh, Justice Perell suspended the dismissal of the certification motion for 6 months to permit the plaintiffs to prepare a revised litigation plan and to give notice to the putative class members. The form of notice was to be settled at a case conference. The plaintiffs were also advised that they could apply for an order under s. 7 of the CPA to have the action continue as one or more proceedings with additional parties.
In Justice Perell's assessment, the procedure, “…of a group of case-managed actions with the plaintiffs being represented by one team of lawyers and the defendant represented by the same lawyer of record in all of the actions provided access to justice, judicial economy and behaviour modification in a way that was procedurally fair”.
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