In its recent appeal decision in Ramdath v. George Brown College of Applied Arts and Technology, the Ontario Court of Appeal provided clarity on section 24 of Ontario's Class Proceedings Act.1  The lower court decision marked the first award of aggregate damages at trial under section 24 of the Class Proceedings Act in Ontario. Glenn Zakaib wrote about the lower court's decision here.

The concept of "aggregate damages" refers to the court's ability to determine monetary damages at a class-wide level based on the total monetary damage caused by the defendant's wrongdoing. The individual class members' entitlement to a share of the aggregate award is left to be determined later. 

Section 24 of the Class Proceedings Act allows the Court to assess and award aggregate damages where:

a) monetary relief is claimed on behalf of some or all class members;

b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability; and

c) the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members.

While not a product liability case, Ramdath will have an impact on all areas of class action litigation.

Background to the Case

Ramdath is a class action commenced by students enrolled in a post-graduate program in International Business Management at George Brown College. The class action arises from a statement in the school's course calendar stating that graduates would have the "opportunity to complete three industry designations/certifications" in addition to a graduate certificate. In reality, the court found that students were required to complete additional courses and/or work experience as well as exams at their own expense in order to fulfill the requirements for the industry designations. 

The Lower Court Decision

The students commenced a class action against George Brown for negligent misrepresentation, breach of contract and breaches of Ontario's Consumer Protection Act and sought an award of aggregate damages against the school under the Class Proceedings Act. The class was comprised of three cohorts of students.

The class action proceeded in stages: the certification stage; a common issues trial in which George Brown was found to have made negligent misrepresentations and breached the Consumer Protection Act, and, finally, the damages trial.  

At the damages trial, the main issue was whether, and to what extent, the class should be awarded aggregate damages. The Court ultimately awarded aggregate damages for the statutory cause of action under the Consumer Protection Act, but removed the third cohort of students from the class.  

Appeal

George Brown appealed the aggregate damages award and the plaintiffs appealed the changes to the class composition. The Court of Appeal ultimately affirmed the aggregate damages award, reinstated the third cohort and referred the assessment of damages for the third cohort back to the trial judge.

Key Take-Away Principles

The Court of Appeal decision in Ramdath provides four key take-aways on aggregate damages that are applicable across all class-actions, including those related to product liability:

1.   Damages in a class proceeding can be assessed on an aggregate, class-wide basis and not merely on an individual basis.

2.   Aggregate damages are desirable where the criteria under section 24 of the Class Proceedings Act are met in order to make class actions an effective instrument to provide access to justice.

3.   A determination of aggregate liability is assessed on a 'reasonableness' standard, determined by:

a.   whether the non-individualized evidence presented by the plaintiff is sufficiently reliable;

b.   whether use of the evidence will result in unfairness or injustice to the defendant, such as overstatement of its liability; and

c.   whether the denial of an aggregate approach will result in a "wrong eluding an effective remedy" and a denial of access to justice.

4.   Even if the quantification of damages is not an originally certified common issue, a trial judge has discretion to invoke the aggregates damages provision after finding liability.

While it remains to be seen whether and to what extent aggregate damages may be appropriate in product liability class actions, the Court of Appeal's approval of the lower court's finding in Ramdath will likely encourage plaintiffs to seek such awards in future cases.

Read the full decision in Ramdath v. George Brown College of Applied Arts and Technology here.

Footnotes

1 2015 ONCA 921, < http://canlii.ca/t/gmphr > [Ramdath].

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