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Class Proceeding (Ont) - Certification - 'Preferrable Procedure' [CPA s.5(1)(d)]. Stolove v. Waypoint Centre for Mental Health Care
In Stolove v. Waypoint Centre for Mental Health Care (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from "the dismissal of their motion to certify a class proceeding alleging systemic negligence in the operation and oversight of the maximum security forensic psychiatric hospital in Penetanguishene, Ontario that provides care for involuntary patients".
Here the court considers the 'preferrable procedure' element of the certification test [CPA s.5(1)(d)]:(4) Preferable procedure criterion
[35] The motion judge observed that if the claim did not raise common issues, it was axiomatic that a class proceeding could not be the preferable procedure for resolving the matters raised by the litigation.
[36] The motion judge nevertheless considered whether, in the event that he had erred in his analysis of commonality, a class proceeding would be an appropriate method of advancing the claims of the class members. He found that even on this hypothesis, a class proceeding would not be the preferable procedure. Rather, a joinder action of the involuntary forensic patients who have individual claims against the respondents would be preferable because such an action would immediately provide access to justice without the need to “run the gauntlet” of a certification motion. He noted that there was an already assembled “critical mass” of co-plaintiffs that would make the case attractive to an entrepreneurial lawyer. On this assumption, the motion judge found that a joinder action would provide as much if not more access to justice, behaviour modification and judicial economy as would a class proceeding that would inevitably require individual issues trials. He therefore concluded that a joinder action would be preferable to a class proceeding and found that the appellants had not satisfied this element of the certification criteria.
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(2) Since the motion judge correctly dismissed the application on grounds of commonality, it necessarily follows that a class proceeding does not satisfy the preferable procedure criterion
[72] As the motion judge pointed out, on the assumption that there are no certifiable common issues disclosed by the proposed class action, it is axiomatic that it does not satisfy the preferable procedure criterion. While the motion judge proceeded, in obiter, to also find that a joinder action was preferable to a class proceeding, this discussion was superfluous and unnecessary in the circumstances of the case. Moreover, the extent to which the motion judge had the benefit of submissions from the parties on the option of joinder is unclear. I therefore would express no view on the motion judge’s alternative analysis of joinder as a preferable procedure. . Lochan v. Binance Holdings Limited
In Lochan v. Binance Holdings Limited (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal, here from "the certification of an action brought on behalf of Canadian investors who purchased cryptocurrency derivative products through an asset trading platform operated by the appellants".
The court considers the 'preferrable procedure' element of class action certification:[24] With respect to whether a class proceeding is the “preferable procedure”, the motion judge noted that the OSC has reported that more than half of Canadian cryptocurrency asset owners have less than $5,000 in the market. Consistent with this court’s decision in Fischer v. IG Investment Management Ltd., 2012 ONCA 47, 109 O.R. (3d) 498, at paras. 79-82, the principle of access to justice supports the conclusion that a large number of small individual claims is not preferable to a class proceeding.
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[55] At a practical level, more than half of Canadian crypto asset owners are small investors with less than $5,000 in the market: Lochan v. Binance Holdings Limited, 2023 ONSC 6714, at para. 15. How – and, more importantly, to what end – would these thousands of unsophisticated investors have undertaken the complex task of preparing a prospectus before selecting and clicking on their preferred Cryptocurrency Derivative on the Binance website? . Price v. Lundbeck
In Price v. Lundbeck (Div Court, 2023) the Divisional Court considered (and dismissed) an appeal of a denial of a class action certification, here in a tort ('duty to warn') pharmaceutical case.
Here the court considers the 'preferrable procedure' element of certification in the class proceeding regime:[30] On the preferrable procedure requirement in s. 5(1)(d) of the Act, the Class Proceedings Judge stated the applicable legal principles, including as set out by Strathy C.J.O. in Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572, 387 D.L.R. (4th) 603. At para. 62, Strathy C.J.O. noted that “it is not enough for the plaintiffs to establish that there is no other procedure which is preferable to a class proceeding. The court must also be satisfied that a class proceeding would be fair, efficient and manageable.”
[31] The Class Proceedings Judge followed the Supreme Court of Canada decision in Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158. In Hollick, at paras. 29-31, McLachlin C.J. held that even though the Act requires only that a class action be the preferrable procedure for the resolution of the common issues, the question of preferability “must take into account the importance of the common issues in relation to the claims as a whole”.
[32] As with the claim in Hollick, the Class Proceedings Judge found that even if the proposed common issues were found to advance the litigation (which he did not find), any such advance would be peripheral and minor. The individual issues would overwhelm any benefit. He also considered the proposed litigation plan, concluding as follows, at para. 211:The present case lacks a workable way forward. It will break down into potentially thousands of individual trials, all with every liability and damages issue to be proven, including general causation of the particular congenital malformation, since the class does not purport to certify such an issue.
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