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CIVIL PROCEDURE - Parties - Class or representative actions - Common interests and issues

Tuesday, March 23, 2021 @ 6:21 AM  


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Motion by the respondent to quash those parts of the appeal dealing with the effect of limitation periods and aggregate damages in a decision respecting common issues in a class action. The respondent was the representative plaintiff in the class action. The action concerned class members’ rights to compensation for overtime worked in the period from 1993 to 2009. The bank appealed all the motions judge’s determinations regarding common issues. The respondent argued that the motions judge’s decision to certify an additional common issue concerning aggregate damages and his decision to refuse a class-wide limitations order and to defer limitations issues to individual hearings could only be appealed to the Divisional Court with leave. It was further argued that since no decision to grant or award aggregate damages had yet been made and the motions judge simply deferred limitations questions to the individual hearings stage, no final order was made, and this court lacked jurisdiction.

HELD: Motion dismissed. The limitations and aggregate damages aspects of the motions judge’s judgment were all part of his judgment on the common issues. This court had jurisdiction under s. 30(3) of the Class Proceedings Act over appeals from a judgment on the common issues, and thus over these aspects of the appeals. The matters that the motions judge dealt with all arose on motions for judgment on the common issues. It was not necessary to consider whether, viewed discretely, the determinations of these issues were final or interlocutory. The limitations defence, in the form of a request for a class-wide limitations restriction, was part of the bank’s position on the summary judgment motions. Answering common issues without giving effect to a defence that was asserted to be applicable on a class-wide basis, even while holding that the defence could be raised in individual hearings, was still a judgment on the common issues for appeal purposes. In certifying aggregate damages as an additional common issue, the motions judge relied on a power that permitted the judge deciding the common issues of liability and remedy to add aggregate damages as an additional common issue. His directions toward an award of aggregate damages were therefore part of his judgment on the common issues.

Fresco v. Canadian Imperial Bank of Commerce, [2021] O.J. No. 322, Ontario Court of Appeal, D.H. Doherty, B. Zarnett and S.A. Coroza JJ.A., January 26, 2021. Digest No. TLD-March222021003