Class Action

Court has latitude to create litigation plan in class action

When class-action parties fail to reach an agreement on a litigation plan for the prosecution of the individual issues in a class proceeding, the court has the power to step in and craft a bespoke process, Toronto class-action lawyer Margaret Waddell tells Legal Feeds.

As the article notes, Ontario Superior Court Justice Paul Perell recently gave both sides in the Lundy v. VIA Rail class action 30 days to consider his proposed litigation plan and directions, and to come up with an agreed upon plan, after they failed to agree on a litigation plan for the individual issues phase, and neither party’s proposed plan was acceptable to the court. If the parties are unable to reach an agreement in that time, Perell has ordered a case conference where he will settle the plan, Legal Feeds reports.

Perell called the matter “a test centre for undeveloped but very important aspects of class action procedure” under the Class Proceedings Act, 1992 (CPA), the article notes.

The 45 class members were passengers on a VIA Rail train in 2012 when it derailed near Burlington. In 2014, Legal Feeds reports, VIA served offers to settle for each class member and a promise to pay members’ legal fees and disbursements in an amount equal to 15 per cent of the settlement amount paid to the class member. The offers were not permitted to be served on the class members until after the common issues were determined. Following the resolution of the common issues, the class members’ damages remained to be assessed individually. Perell “ruled that once the litigation plans were settled, VIA could then deliver the individual offers to settle. But the sides could not agree on those plans and Perell ordered they try one more time,” the article says.

As Waddell, partner at Paliare Roland Rosenberg Rothstein LLP, says in the article, the rules under the CPA are purposefully broad to ensure an efficient process. “If the parties can’t reach an agreement, then the court has tremendous discretion and latitude in creating a bespoke process for each case. Once a case reaches this stage of the proceeding, the efficiencies of the CPA really come home to roost.”

“The parties can agree on their own efficient process, or if they can’t agree, then the court has the power to craft a procedure that works for the litigants in a way that best meets the objectives of access to justice, efficiency and proportionality for all the remaining parties,” she adds.

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