The Evolution and Devolution of Aggregate Damages as a Common Issue

The certification of aggregate damages is an important step in pushing a class action toward resolution. If aggregate damages are certified, the common issues trial represents a figurative “gun to the head” of the defendant. If aggregate damages are not certified, pressure on the defendant is relieved, and the class is faced with a far less certain path. Even if the class is successful at the common issues trial, individual damages hearings may devolve into complex and lengthy miniature trials, where access to justice and judicial efficiency are sacrificed. Over the past decade, Canadian courts have been of two minds when it comes to aggregate damages. Initially, courts applied a strict interpretation of section 24 of the Class Proceedings Act, 1992, but subsequently they relaxed their interpretation, resulting in a wider array of scenarios where aggregate damages were certified. More recently, courts have returned to the more restrictive approach. This recent trend has led to some potentially unexpected results and a situation where aggregate damages are available only in the clearest of cases. This trend represents an inflexible and non-purposive reading of the CPA, and appellate guidance is needed.