



COURT OF APPEAL FOR ONTARIO

CITATION: Amyotrophic Lateral Sclerosis Society of Essex v.
    Windsor (City), 2015 ONCA 572

DATE: 20150812

DOCKET: C59525 & C59526

Strathy C.J.O., LaForme and Tulloch JJ.A.

DOCKET: C59525

BETWEEN

Amyotrophic Lateral Sclerosis Society of Essex
    County

Plaintiff (Respondent)

and

The Corporation of the City of Windsor

Defendant (Appellant)

DOCKET: C59526

BETWEEN

Belle River District Minor Hockey Association Inc. and

Essex County Dancers
    Incorporated

Plaintiffs (Respondents)

and

The Corporation of the
    Town of Tecumseh

Defendant (Appellant)

Scott Hutchison, for
    appellant City of Windsor

Brendan van Niejenhuis, for
    the appellant Town of Tecumseh

Peter W. Kryworuk and Yola S.
    Ventresca, for the respondents

Heard: May 13, 2015

On appeal from the orders of the Divisional Court
    (Justices James C. Kent, Clayton Conlan and Michael N. Varpio), dated April 28,
    2014.

Strathy C.J.O.:

[1]

The appellant municipalities appeal the certification of two class
    actions which claim that charitable lottery licensing and administration fees collected
    by the municipalities are direct taxes and therefore
ultra vires
because the revenues far exceed the costs of administration: see
Eurig
    Estate (Re)
, [1998] 2 S.C.R. 565.

[2]

The appellants acknowledge that some of the respondents claims are
    appropriate for resolution by class action. They initially consented to
    certification of claims for fees paid within the limitation periods prescribed
    by the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B.

[3]

The appellants primary objection is to the temporal scope of the class,
    which includes charities that have paid fees since 1990. They say this reaches
    too far back in time. This means, they say, that some of the common issues are
    not common to all class members and a class proceeding is not the preferable
    procedure for the resolution of all claims.

[4]

These actions were commenced in 2008. Unfortunately, they are not yet out
    of the starting gate.

[5]

For the reasons that follow, it is my view that with some adjustment these
    proceedings meet the requirements of s. 5(1) of the
Class Proceedings Act,
    1992,
S.O. 1992, c. 6

(
CPA
). The time has come to ring
    the bell and get them on their way.

JUDICIAL HISTORY

[6]

These actions have had a tortuous judicial history, having been twice
    certified, with ensuing appeals. I will describe that history to the extent
    necessary to understand the issues on appeal.

(1)

Certification: Round One

[7]

The plaintiffs commenced their actions on October 24, 2008. The proposed
    classes consisted of anyone who had paid licensing fees on or after January 1, 1990.

[8]

The certification judge initially certified a class of charities that
    paid licensing fees in two time periods:

·

October 24, 2006 and thereafter; and

·

October 24, 2002 to December 31, 2003.

[9]

The first period covered claims arising within two years of the
    commencement of this action and therefore within the two-year limitation period
    in the
Limitations Act, 2002
.  The second period covered claims
    preserved by the transitional provisions of the
Limitations Act, 2002
.

[10]

In
    limiting the claim to these periods, the certification judge accepted the
    municipalities argument that claims falling outside these periods could not
    succeed because they were time-barred. He explained that in
Kingstreet
    Investments Ltd. v. New Brunswick (Finance)
, 2007 SCC 1, [2007] 1 S.C.R.
    3, which concerned allegedly illegal fees collected by New Brunswick, the
    Supreme Court held that the limitation period began to run at the moment the
    province received payment. He rejected the plaintiffs submission that the
    applicability of the
Limitations Act, 2002
should be determined at a
    later stage, either on a summary judgment motion or at trial.

[11]

The
    plaintiffs appealed, with leave, to the Divisional Court. That court allowed
    the appeal for two reasons.

[12]

First,
    the court held that the certification judge erred by interpreting
Kingstreet
as having established an absolute limitation period for claims of this type.
    The court noted that in
Kingstreet
, there was no discoverability issue
    that could have extended the applicable limitation period. By contrast, in this
    case the plaintiffs pleaded a discoverability/concealment issue.

[13]

Second,
    and related, the discoverability/concealment issue raised questions of fact
    that could only be decided based on evidence. However, the inquiry under s.
    5(1)(a) of the
CPA
is based on the pleadings alone and does not engage
    any discretion or fact finding. While it was not clear to the Divisional Court that
    the certification judge had considered any evidence under s. 5(1)(a), if he
    had, it would constitute an error of law.

[14]

The
    Divisional Court remitted the matter back to the certification judge for reconsideration.
    It explained that it was open to him to truncate the class or the common issues
    or to dismiss the certification motion altogether, if he found the proceeding
    was inappropriate for certification without a temporal limit.

(2)

Certification: Round Two

[15]

The
    certification rehearing was held in November 2012. This time, the certification
    judge certified both class actions using the plaintiffs originally proposed,
    and admittedly arbitrary, commencement date of January 1, 1990.

[16]

The
    certification judge held, first, that the statement of claim disclosed a cause
    of action.

[17]

Second,
    there was an identifiable class, defined as all persons whether natural
    (including unincorporated associations) or corporate who have paid lottery
    licensing fees and/or lottery administration fees to [the municipalities] on or
    after January 1, 1990.

[18]

Third, the proposed claims raised common issues as to
    liability, damages and limitation periods. The common issues certified were as
    follows:

1. In pith and substance are the lottery licensing fees and
    lottery administration fees that have been charged by [the municipalities] to
    members of the class during the claim period or any part thereof, taxes imposed
    in a manner contrary to s. 53 of the
Constitution Act, 1867
?

2. Do the statements and/or the conduct by and on behalf of the
    Hall Charities Association and/or Bingo Sponsor Association give rise to a
    defence in the nature of
laches
, estoppel, waiver or analogous
    equitable defences that bind the class or bind an identifiable subclass subject
    to the defendants right to move under Rule 20 and/or Rule 21 of the
Rules
    of Civil Procedure
?

3. Apart from any arguments relating to discoverability and/or
    concealment, what is the limitation period applicable to such claims arising
    prior to the coming into force of the
Limitations Act, 2002
on January
    1, 2004?

4. What is the effect, if any, of the transitional provisions
    contained in the
Limitations Act, 2002
upon the claims of the class
    members?

5. At what time (or times), if any, should the class members
    ought to have known that they had a claim against [the municipalities], such
    that the applicable limitation period began to run against all class members,
    having regard to the principles of discoverability and concealment?

6 If the said fees are taxes which are
ultra vires
or
    otherwise illegal, are class members entitled to an accounting and/or
    restitution of such taxes paid to [the municipalities] subject to any
    applicable limitation period,
laches
, waiver and/or estoppel arguments?

7. Having regard to all the circumstances, is an award of
    punitive damages appropriate in this case?

[19]

The
    contentious common issues before this court are issues 3, 4 and 5, which relate
    to limitation periods.

[20]

The
    certification judge rejected the municipalities submission that these issues,
    and particularly common issue 5, would be unmanageable. He noted that because the
    plaintiffs limited the discoverability question to what a reasonable person
    ought to have known, there would be no need to inquire into what each class
    member actually knew in order to determine this common issue.

[21]

He
    held that the impact of the limitations issues should be dealt with later,
    rather than at the certification stage. He explained that after pleadings,
    production of documents and discovery, the application of the
Limitations
    Act, 2002
could be appropriate for determination on a summary judgment
    motion.

[22]

Fourth,
    building on this analysis, the certification judge noted that he had previously
    held that a class proceeding would be appropriate to adjudicate the timely
    claims. He added, at para. 26: And now on further analysis I am of the opinion
    that it is appropriate to permit those individuals who are outside the basic
    limitation period to have an opportunity to be heard. In his view, the
    limitations issue did not make the proceeding unmanageable.

[23]

Fifth,
    and finally, the certification judge found that the representative plaintiffs
    were able to advance the claims of all class members, including those with
    claims outside the basic limitation period. He did not address the issue of
    whether it was appropriate to create a subclass pursuant to s. 5(2) of the
CPA.

[24]

Justice
    Nolan granted the municipalities motion for leave to appeal to the Divisional
    Court. In her view, the certification judges preferability analysis did not demonstrate
    that he had considered the advantages and disadvantages of a class action and
    the manageability of a proceeding that included potentially time-barred claims.

[25]

Justice
    Nolan also noted, at para. 25, that the certification judge did not provide an
    analysis of whether the
prima facie
time-barred claims actually formed
    a subclass.

[26]

The
    Divisional Court dismissed the municipalities appeal. The court emphasized
    that the certification judges decision was entitled to substantial deference
    unless he erred in law or principle.

[27]

The
    Divisional Court approved the class definition and was not persuaded that the
    certification judge erred by failing to identify a subclass.

[28]

It
    rejected the municipalities argument that it would be unfair and inefficient
    to litigate the timely claims alongside the presumptively time-barred ones. It
    also rejected the municipalities argument that the certification judge erred
    in finding that the representative plaintiffs could represent all class
    members. The court held that it was open to the certification judge to find
    that the representative plaintiffs were suitable and did not have a conflict of
    interest.

[29]

Finally,
    the Divisional Court held that it was open to the certification judge to find
    that there were common issues, including issues of discoverability,
    notwithstanding that some of the claims were clearly brought in time.

[30]

The
    appellants appeal to this court, with leave.

ANALYSIS

[31]

The
    appellants submissions focused on: (a) the class definition; (b) whether
    subclasses are required; (c) the lack of commonality of some issues; (d) the inability
    of the representative plaintiffs to fairly represent the claims of all class
    members; and (e) whether a class proceeding is the preferable procedure for the
    resolution of the claims.

[32]

I
    will address each of these in turn. In summary, in my view the class definition
    was arbitrary and some common issues lacked commonality. These are not fatal defects,
    however. They can be corrected by modifying the class definition, creating a
    subclass and stating subclass common issues. A subclass representative is not
    required, at this time. Thus modified, a class action remains the preferable
    procedure for the resolution of the claims.

(a)

The Class Definition

[33]

It
    is a basic principle that the plaintiff must define the class with precision
    and in a way that is neither over-inclusive nor under-inclusive:
Hollick v.
    Toronto (City)
, 2001 SCC 68, [2001] 3 S.C.R. 158. In
Hollick
,
    McLachlin C.J. held that the putative plaintiff must show that the class has
    been defined sufficiently narrowly. She explained the nature of the exercise,
    at para. 21:

The requirement is not an onerous one. The
    representative need not show that
everyone
in the class shares the same interest in the resolution of the
    asserted common issue.  There must be some showing, however, that the
    class is not
unnecessarily
broad  that is, that the class could not be defined more narrowly
without
arbitrarily excluding some people who share the same interest in the
    resolution of the common issue.  Where the class could be defined more
    narrowly, the court should either disallow certification or allow certification
    on condition that the definition of the class be amended. [Emphasis in
    original.]

[34]

In
    Warren K. Winker et al,
The Law of Class Actions in Canada
(Toronto:
    Canada Law Book, 2014), the authors set out the general principle that should
    guide the task of defining a class under s. 5(1)(b), at p. 93:

A satisfactory class definition should bind the
    persons who ought to be bound and, therefore, the definition should not be
    under-inclusive. By the same token, a satisfactory definition should not bind
    persons who ought not to be bound, and, therefore, the definition should not be
    over-inclusive. An optimal class definition should not arbitrarily exclude
    those who share the same cause of action, or include persons without a claim.

[35]

The
    certification judge recognized that s. 5(1)(b) of the
CPA
requires the
    plaintiff to define the class in a rational manner. He also correctly stated
    the purposes of the class definition: to identify persons who have a potential
    claim against the defendants; to define the parameters of the lawsuit so as to
    include persons who should be bound by the result; and to describe who is
    entitled to notice of certification. He acknowledged the January 1, 1990 date
    was arbitrary, but approved it nonetheless, suggesting that the scope of the
    class could be refined after a summary judgment motion based on the limitation
    period.

[36]

The
    Divisional Court saw no error in the date being somewhat arbitrary. It
    suggested that having no date could make the proceeding unmanageable and that
    the date could be revisited after discoveries, once the parties had a better
    handle on the historical claims.

[37]

The
    actions were commenced on October 24, 2008. The timely claims, which the appellants
    concede can go forward, are those where payments were made: (a) from and after
    October 24, 2006, based on the standard two-year limitation period in the
Limitations
    Act, 2002
; and (b) between October 24, 2002 and December 31, 2003, based
    on the transition provisions in s. 24(7.1) of the
Limitations Act, 2002
,

which provide for a six-year limitation period for claims relating to
    payments made before January 1, 2004.

[38]

The
    appellants argue that claims outside these periods are presumptively time-barred
    and do not meet the test for certification under s. 5(1)(c), (d) and (e) of the
CPA
 they lack commonality with the timely claims, the proposed
    representative plaintiffs are inappropriate, and a class proceeding is not the
    preferable procedure.

[39]

I
    agree with the appellants that the class should not have been defined using an
    arbitrary cut-off date. Arbitrariness in the class definition defeats some of
    the important purposes of class proceedings: binding all persons who ought to
    be bound by the decision, providing access to justice and achieving judicial
    economy. See
Dumoulin v. Ontario
(2005), 19 C.P.C. (6th) 234 (S.C.), at
    para. 20;
Ragoonanan v. Imperial Tobacco Canada Ltd.
(2005), 78 O.R.
    (3d) 98 (S.C.), at para. 12, affd (2008), 54 C.P.C. (6th) 167 (Div. Ct.). Nor
    was it appropriate to adopt a wait and see approach to the class definition, leaving
    it to the defendants to define its contours by a summary judgment motion. It is
    the plaintiffs responsibility to define the class properly, not the
    defendants.

[40]

How,
    then, should the class be defined in this case?

[41]

As
    I have explained, the appellants propose to limit the claims to the timely
    claims  i.e. those between October 24, 2002 and December 31, 2003, and from
    October 24, 2006 onward. The respondents complain that truncating the class in
    this way presupposes that claims outside these time periods are time-barred  a
    conclusion that depends on a factual inquiry regarding discoverability.
    However, the case law is clear: where the resolution of the limitation issue
    depends on a factual inquiry, such as when the plaintiff discovered or ought to
    have discovered the claim, the issue should not be decided on the motion for
    certification:
Serhan (Trustee of) v. Johnson & Johnson
(2006), 85
    O.R. (3d) 665 (Div. Ct.), at paras. 140-145, leave to appeal to C.A. refused
    (unreported), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 494.  See
    also
McKenna v. Gammon Gold

Inc.
,
2010 ONSC 1591
,
88 C.P.C. (6th) 27,
at paras. 38-39.

[42]

On
    the other hand, if the classes are defined using no temporal limit, the claims
    would reach back to 1969/1970 when Ontario first introduced the licencing
    regime for charitable gaming. All parties appear to agree that a class
    definition stretching back more than four decades may make the proceeding unmanageable.

[43]

In my view, the temporal boundary of the class can be defined in a
    rational way by reference to the ultimate limitation period in s. 15(2) of the
Limitations
    Act, 2002
. That provides, No proceeding shall be commenced
    in respect of any claim after the 15th anniversary of the day on which the act
    or omission on which the claim is based took place. This would result in a
    class definition encompassing persons who paid fees from and after October 24,
    1993.

[44]

Although s. 15(4) of the
Limitations Act, 2002
provides an exception to the ultimate limitation period in the case of
    wilful concealment, drawing the class boundary at the ultimate limitation
    period is not arbitrary because it separates claims that require proof of
    wilful concealment from those that do not.

[45]

As I will explain, concerns with respect to manageability can be
    addressed by the creation of a subclass, by stating common issues for the
    subclasses and by appropriate case management. I will discuss the subclass
    issue next.

(b)

Subclasses

[46]

The court has the authority to certify a subclass of class members who
    have claims or defences not shared by all class members:
CPA
, s. 5(2). Subclasses are appropriate when there are common issues
    applicable to the class as a whole and other issues that are applicable to
    some, but not all class members:
Caputo v. Imperial Tobacco Ltd.
(2004),
44 C.P.C. (5th) 350
(Ont. S.C.), at para. 45.

[47]

Here, issues of liability and damages are common to all class members.
    However,
the claims of class members with presumptively time-barred
    claims raise common issues of fact and law not shared by those with timely
    claims. They should form a subclass.
I
would therefore certify
    a subclass of persons who paid fees between October 24, 1993 and October 23,
    2002 and between January 1, 2004 and October 23, 2006. These are the payments made
    within the ultimate limitation period in s. 15 of the
Limitations Act,
    2002
, but not within the basic limitation period and not preserved by the
    transition rules of the statute.

(c)

Common Issues

[48]

A
    common issue must be a substantial ingredient of every class members claim and
    its resolution must serve to advance the resolution of that claim: see
Hollick
,
    at para. 18;
Vivendi Canada Inc. v. Dell'Aniello
,
2014
    SCC 1, [2014] 1 S.C.R. 3, at
para. 46. The answer to the question must
    be capable of extrapolation to every member of the class: see
McKenna
,
    at para. 125;
Sankar v. Bell Mobility
, 2013 ONSC 5916, 52 C.P.C. (7th)
    75, at paras. 91, 93, leave to appeal to Div. Ct. refused,
2013
    ONSC 7529
.

[49]

The
    certification judge properly certified common issues relating to liability
    (issue 1), defences (issue 2) and remedies (issues 6 and 7) that are common to
    all class members.

[50]

However,
    common issues 3, 4 and 5 are of no interest to class members whose claims are timely.
    Those issues are only applicable to the subclass members, whose claims may be
    subject to a limitations defence. They should be subclass common issues.

(d)

Representative Plaintiffs

[51]

The
    issue now is whether a separate subclass representative is required. The
    appellants say the representative plaintiffs cannot fairly and adequately
    represent the interests of the subclass.

[52]

They
    rely on the principle expressed in
Stone v. Wellington County Board of
    Education
(1999)
,
120 O.A.C. 296 (C.A.), at
    para. 10, leave to appeal to S.C.C. refused, [
1999]
    S.C.C.A. No. 336,
that [w]here a representative plaintiff, for reasons
    personal to that plaintiff, is definitively shown as having no claim because of
    the expiry of a limitation period, he or she cannot be said to be a member of
    the proposed class.

[53]

The
    appellants say the representative plaintiffs have a conflict of interest,
    because they have admitted to knowledge of certain facts that makes it
    impossible to rebut the presumption that they discovered their claims outside
    the limitation period. They say the subclass members with presumptively time-barred
    claims would be prejudiced if they were represented by these plaintiffs.
    Moreover, say the appellants, the representative plaintiffs may be inclined to
    sacrifice their interests in the time-barred claims in order to prosecute their
    timely claims.

[54]

The
    appellants refer to s. 5(2) of the
CPA
,

which provides that
    where, in the opinion of the court, the protection of subclass members requires
    that they be separately represented, the court shall not certify the proceeding
    unless there is a representative plaintiff who would fairly and adequately
    represent the subclass, has produced a workable litigation plan on behalf of
    the subclass and who does not have, on the subclass common issues, a conflict
    of interest with the subclass.

[55]

I
    do not read this statutory requirement as precluding the class representative
    from representing a subclass. It is only when the representative plaintiff
    cannot fairly and adequately represent the subclass that the need for a
    separate subclass representative arises: see
Pearson v. Boliden Ltd.
,
2001 BCSC 1054, 94 B.C.L.R. (3d) 133
, at para. 73, varied on
    other grounds,
2002 BCCA 624, 222 D.L.R. (4th) 453
;
Dominguez
    v. Northland Properties Corporation
, 2012 BCSC 328, at paras. 75-83;
Anderson
    v. Wilson
(1999), 44 O.R. (3d) 673 (C.A.), leave to appeal to S.C.C. refused,
[
1999] S.C.C.A. No. 476
;
Caponi
    v. Canada Life Assurance Co.
(2009),
72 C.P.C. (6th) 331
(Ont. S.C.), at para. 56.

[56]

It
    is not necessary to resolve the appellants concerns at this time. The
    representative plaintiffs, like many class members, may have claims that are
    both timely and presumptively time-barred. They have an interest, at least at
    the present time, in advancing both types of claims. They certainly have an
    interest with all class members in the common issues of liability and damages.

[57]

Moreover,
    I am not convinced that it is quite as obvious as the appellants suggest that
    the admissions made by the representative plaintiffs or their counsel are fatal
    to their claims. It has not been definitively shown that they have no claim.

[58]

On
    the present record, I am not satisfied the representative plaintiffs are unable
    to represent all class members. It may be that at some future date it will be
    necessary to revisit this issue, but that issue, and when it should be
    addressed, are matters best left to the judgment of the case management judge.

(e)

Preferable Procedure

[59]

The
    remaining issue is whether this proceeding, as modified, meets the requirement
    of s. 5(1)(d) of the
CPA
 that is, whether it would be the preferable
    procedure for the resolution of the common issues.

[60]

The
    preferability analysis asks two main questions, as set out in
Hollick
:
    (a) whether or not the class proceeding would be a fair, efficient and
    manageable method of advancing the claim; and (b) whether a class proceeding
    would be preferable to other procedures.

[61]

These
    questions are to be addressed through the lens of the three goals of class
    action proceedings  judicial economy, access to justice and behaviour
    modification:
Hollick
, at para. 27. However, there is no requirement
    to prove that the class action will actually achieve these goals:
AIC
    Limited v. Fischer
,
2013 SCC 69
, [2013] 3
    S.C.R. 949, at para. 22.

[62]

Although
    recent case law, particularly
AIC Limited v. Fischer
, has focused on
    the second question  the comparison to alternative procedures  the proposed
    class proceeding must nevertheless be fair, efficient and manageable in order
    for it to be certified. As stated by Winkler J., as he then was, in
Caputo
,
    at para. 62:

[I]t is not enough for the plaintiffs to establish that there
    is no other procedure which is preferable to a class proceeding. The court must
    also be satisfied that a class proceeding would be
fair,
    efficient and manageable
. Both parts of the test must be considered in
    the context of the three goals of the
CPA
, judicial economy, access to
    justice and behavioural modification of tortfeasors.

[63]

In
    this case, there are two issues of preferability. The first is the complexity
    introduced by the need to resolve potentially time-barred claims along with the
    timely claims. The appellants concede that a class action
could
combine timely claims and the presumptively time-barred claims. They say,
    however, that in this case the court should certify only a focused class of
    timely claims and leave the other claims to be pursued individually by those
    claimants who wish to do so.

[64]

The
    second concern is the existence of different regulatory and fiscal regimes over
    the broad class period, which may necessitate individual inquiries, in
    individual time periods, to determine issues of both liability and damages.

[65]

The
    difficulties faced by defendants simply by virtue of having to respond to
    common and individual issues do not make a class proceeding unfair, inefficient
    or unmanageable if those issues will have to be dealt with by the defendants
    one way or another. In
Cloud v. Canada (Attorney General)

(2004), 73 O.R. (3d) 401
(C.A.), leave to appeal to S.C.C. refused,
    [2005] S.C.C.A. No. 50, the defendants argued that a class action proceeding
    would be unfair to them and would create an unmanageable proceeding. Justice
    Goudge rejected that submission, stating at para. 89-90:

The common issues require resolution one way or the other. It
    is no less fair to the respondents to face them in a single trial than in many
    individual trials.

That conclusion is not altered even if one takes into
    consideration the individual adjudications that would follow. The fact of a number
    of individual adjudications of harm and causation did not render the action in
    Rumley unmanageable and does not do so here. Thus at this stage in the
    proceedings, when one views the common issues trial in the context of the
    action as whole, there is no reason to doubt the conclusion that the class
    action is a manageable method of advancing the claim.

[66]

The
    appellants argue that the certification judge failed to address the preferable
    procedure requirement. They say that combining the presumptively time-barred
    claims with the timely claims is not the preferable procedure for the
    resolution of either.  They submit the large quantum at issue in the presumptively
    time-barred claims makes them amenable to ordinary litigation. Their small
    likelihood of success, given the admissions of the representative plaintiff and
    the challenges of litigating those claims, makes it clear that they should not
    be litigated with the timely claims.

[67]

I
    disagree. In my view, the significant features of class proceedings  the
    ability to case manage groups of claims raising common issues and the ability
    to make binding determinations of those issues  make a class proceeding
    appropriate to resolve these claims. With active and strategic case management,
    and a resolve by the parties to focus on the fair and efficient resolution of
    the issues, both liability and limitation period issues could be resolved
    relatively expeditiously.

[68]

Section
    12 of the
CPA
empowers the case management judge to make appropriate
    orders to ensure the fair and expeditious determination of the proceeding and
    to impose appropriate terms on the parties. This provision is procedural (see
McCracken
    v. Canadian National Railway Co.
, 2012 ONCA 445,
293
    O.A.C. 274,
at para. 142) and does not permit a judge to ignore or
    override provisions of the
CPA
. However, together with Rule 1.04 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, it does permit
    the judge to impose procedural terms that will promote access to justice and
    judicial economy as well as ensure the just, most expeditious and least
    expensive determination of the proceeding on its merits.

[69]

The
Manual for Complex Litigation
, 4th ed., published by the American
    Federal Judicial Center in 2004, provides a useful catalogue of the features of
    effective case management at 10.13:

Effective judicial
    management generally has the following characteristics:

·

It is active
. The judge anticipates problems before they
    arise rather than waiting passively for counsel to present them. Because the
    attorneys may become immersed in the details of the case, innovation and
    creativity in formulating a litigation plan frequently will depend on the
    judge.

·

It is substantive
. The judge becomes familiar at an
    early stage with the substantive issues in order to make informed rulings on
    issue definition and narrowing, and on related matters, such as scheduling,
    bifurcation and consolidation, and discovery control.

·

It is timely
. The judge decides disputes promptly,
    particularly those that may substantively affect the course or scope of further
    proceedings. Delayed rulings may be costly and burdensome for litigants and
    will often delay other litigation events. The parties may prefer that a ruling
    be timely rather than perfect.

·

It is continuing
. The judge periodically monitors the
    progress of the litigation to see that schedules are being followed and to
    consider necessary modifications of the litigation plan. Interim reports may be
    ordered between scheduled conferences.

·

It is firm, but fair
. Time limits and other controls and
    requirements are not imposed arbitrarily or without considering the views of
    counsel, and they are revised when warranted. Once established, however,
    schedules are met, and, when necessary, appropriate sanctions are imposed  for
    derelictions and dilatory tactics.

·

It is careful
. An early display of careful preparation
    sets the proper tone and enhances the courts credibility and effectiveness
    with counsel.

[70]

Case
    management judges in class proceedings are of course required to be fair to
    both parties, and they should take the representative plaintiffs litigation
    plan as an important starting point in guiding the case management process. At
    the same time, they are entitled to seek and impose creative solutions to the
    efficient determination of the issues. The resolution of issues does not always
    require an adversarial hearing. Some case management judges and counsel find
    case management conferences to be an efficient way of resolving procedural
    issues, through discussion, negotiation and consensus, facilitated by the case
    management judge and without the need for formal rulings.

[71]

The
    case management judge is entitled to give directions as to when certain steps
    should be accomplished and as to what motions may be brought, and when. The
    case management judge may prohibit motions from being brought before certain
    steps have been accomplished and may make orders as to the sequencing of
    motions. The case management judge is also entitled to determine the order in
    which some issues are addressed. He or she is entitled, but not required, to
    determine whether some issues are amenable to summary judgment and to schedule
    the proceedings accordingly.

[72]

In
    this case, individual issues may remain after the common issues have been
    resolved. It may be asserted that particular class members had special knowledge
    that triggered the commencement of the limitation period, notwithstanding that
    the information was not publicly known. Different regulatory regimes, fee
    scales and cost-recovery methods may require analysis of particular segments of
    the class period. I am not persuaded, however, that this would make the
    proceeding unmanageable or incapable of fair and efficient resolution. Indeed,
    it is my view that these issues can most effectively and fairly resolved in the
    context of this proceeding.

[73]

As
    I suggested earlier, case management should be complimented by a resolve by the
    parties to focus on the fair and efficient resolution of the issues. That
    should be true in all litigation, but it is particularly important in complex
    litigation such as class proceedings. All the more so in a case like this, in
    which the ultimate cost will be borne by the public, one way or the other. It
    behooves the parties, assisted by the case management judge, to focus their
    energies accordingly.

DISPOSITION

[74]

For
    these reasons, the appeal is allowed, in part, the judgment below is varied and
    the proceeding shall be certified as a class proceeding pursuant to s. 5(1) of
    the
CPA
on the terms set out herein.

[75]

As
    success is divided, I would make no order as to costs.

Released: HSL AUG 12 2015

G.R.
    Strathy C.J.O.

I
    agree. H.S. LaForme J.A.

I
    agree. M. Tulloch J.A.


