The Unworkability of the Workable Methodology Standard

Abstract: The prevailing approach to the workable methodology standard — a threshold requirement whereby putative representative plaintiffs must demonstrate there is a “workable methodology” for assessing general causation at certification — does not provide clear, consistent guidance on the meaning or application of “workability,” or the evidence representative plaintiffs must adduce to overcome this requirement. As a result, Canadian courts have diverged on the question of whether one must demonstrate an existing, empirically tested methodology to satisfy this evidential standard, or whether one need only demonstrate a credible, plausible methodology, which — though not tested yet — could allow for the issue of general causation to be determined on a class-wide basis. The current state of the law is particularly concerning in the context of class proceedings alleging novel mechanisms of harm (like toxic torts), which are increasingly important legal mechanisms to hold tortfeasors accountable in today’s world of mass production, technological advances, and the megacorporation. The workable methodology standard has far-reaching implications, as a court’s insistence on a tested methodology (if that is indeed the standard) creates a scenario of quasi-legal-immunity for defendants who expose individuals to unstudied or prohibited chemicals and thus presently unstudied risks of injury. This paper begins by tracing the forked paths of the workable methodology standard in Canadian jurisprudence before offering a critique of insistence on empirical proof of causation, especially at certification. It concludes by suggesting a principled path forward for defining “workable methodology” in an equitable, predictable manner that is consistent with the objectives of class proceedings, the evidentiary standard at certification, and the most basic tenets of tort law.