November 27, 2007

The Ontario Court of Appeal held this week that a plaintiff class may be certified under the Canadian Class Proceedings Act even if damages in the case must be determined individually at a cost that could dwarf the amounts of the claims themselves.

Chief Justice Warren Winkler wrote, "It would hardly be sound policy to permit a defendant to retain a gain made from a breach of contract simply because the defendant estimates its costs of calculating the amount of the gain to be substantial." But is it sound policy to address such issues through the class-action mechanism at enormous cost rather than through the regulatory process?