On October 1, 2020, significant amendments to the Class Proceedings Act, 1992 (“CPA”) came into force. Since the introduction of the amendments, only a handful of cases have been released interpreting the new provisions. In the first part of this class action blog series, we will be discussing Justice Perell’s recent decision in Blackford-Hall v Simply Group,[1] one of the first cases to interpret the new provisions with respect to carriage motions contained in s. 13.1 of the CPA.
The Decision
In Blackford-Hall v Simply Group, Perell J. interpreted section 13.1 of the CPA in the context of a carriage motion between two rival proposed class actions: The “Bonnick Action” and the “Blackford-Hall Action.” Both proposed class actions involve allegations about predatory practices in the consumer marketplace for HVAC equipment including furnaces, air conditioners, air cleaners, air purifiers, water heaters, water treatment devices, water purifiers, and water softeners.[2]
The court confirmed the factors now codified in s. 13.1(4) to be considered on carriage motions:
(a) each representative plaintiff’s theory of its case, including the amount of work performed to date to develop and support the theory;
(b) the relative likelihood of success in each proceeding, both on the motion for certification and as a class proceeding;
(c) the expertise and experience of, and results previously achieved by, each solicitor in class proceedings litigation or in the substantive areas of law at issue; and
(d) the funding of each proceeding, including the resources of the solicitor and any applicable third-party funding agreements as defined in section 33.1, and the sufficiency of such funding in the circumstances.[3]
One of the notable changes is s. 13.1(4)(b), which is a marked departure from the existing law and now directs the judge to consider the relative likelihood of success in each proceeding both on the motion for certification and as a class proceeding.[4] This factor was not a consideration in carriage motions prior to the amendments to the CPA.
Another notable change in s. 13.1(1) is the focus on “efficiency,” which directs the courts to measure access to justice against the principles of efficiency, productivity, and proportionality.[5] This will involve measuring the anticipated outcome against the resources being used to achieve class members’ goals and aims to discourage case theories that may waste resources or cause a proceeding to drag on without sufficiently achieving access to justice.[6]
Perell J. concluded that the Bonnick Action should be granted carriage as it was the most efficient and cost-effective proceeding to advance the claims of the class members.[7] Applying the factors in section 13.1(4), Justice Perell found factors (c) and (d) to be neutral. Factors (a) and (b) were determinative, and Justice Perell characterized the two proposed class actions as having “radically different case theories, and radically different strategies to achieve success.”[8] The strategy in the Bonnick action is to “attack and capture command and control” by targeting only the top of the chain of command, Mr. Krimker and his lender corporations, with two causes of action. In contrast, the strategy in the Blackford-Hall action is “a massive ground war assault that attacks the Defendants’ battalions and then marches against the chain of command” by advancing seven causes of action against several Defendants.[9]
The court was not persuaded that the Bonnick Action was deficient for placing all of their “eggs in one basket”. Rather, the Blackford-Hall Action alternative was a “dog’s breakfast of a case theory that is inefficient, disproportionate, and potentially unproductive.”[10] The narrower, more focused Bonnick Action would avoid the commonality and preferable procedure hurdles to certification faced by the Blackford-Hall Action.
The court also considered whether a regional class proposed by the Bonnick Action in contrast to a national class being sought in the Blackford-Hall Action was more appropriate. Considering the intricacies of each province’s consumer protection legislation, the court was attuned to the jurisdictional hurdles a national class may face.
Conclusion
As one of the first decisions to interpret section 13.1 of the CPA, this case provided important guidance on how the court will interpret the new carriage provisions of the Act and which factors the court will put particular emphasis on when deciding which action should be granted carriage of a proposed class action. The decision also highlights the importance of class counsel’s theory and pleading of the case. A “dog’s breakfast” style pleading will not always be preferred to a leaner, cost-effective pleading that would best advance the claims of the class members in an efficient and cost-effective manner.
[1] Blackford-Hall v Simply Group, 2021 ONSC 8502.
[2] Blackford-Hall v Simply Group, 2021 ONSC 8502 at paras 16-17.
[3] Blackford-Hall v Simply Group, 2021 ONSC 8502 at para 3.
[4] Blackford-Hall v Simply Group, 2021 ONSC 8502 at para 4.
[5] Blackford-Hall v Simply Group, 2021 ONSC 8502 at para 9.
[6] Blackford-Hall v Simply Group, 2021 ONSC 8502 at para 11.
[7] Blackford-Hall v Simply Group, 2021 ONSC 8502 at para 38.
[8] Blackford-Hall v Simply Group, 2021 ONSC 8502 at para 33.
[9] Blackford-Hall v Simply Group, 2021 ONSC 8502 at paras 34-35.
[10] Blackford-Hall v Simply Group, 2021 ONSC 8502 at para 40.
