DATE: 20060615
DOCKET: C43555-C43556
COURT OF APPEAL FOR ONTARIO
DOHERTY, ROSENBERG and ARMSTRONG JJ.A.
B E T W E E N :
JILL HICKEY-BUTTON
Robert J. Reynolds for the appellant, Hickey-Button
Plaintiff (Appellant)
- and -
THE LOYALIST COLLEGE OF APPLIED ARTS & TECHNOLOGY Defendant (Respondent)
B E T W E E N :
BONNIE POTTER
Plaintiff (Appellant)
- and -
Michael J. Pretsell for the appellant, Potter
Steven Stieber for the respondent
THE LOYALIST COLLEGE OF APPLIED ARTS & TECHNOLOGY Defendant (Respondent)
Heard: January 17, 2006
On appeal from the order of the Divisional Court (P. Theodore Matlow, Alan C.R. Whitten and Gordon I.A. Thomson JJ.) dated November 2, 2004.
DOHERTY J.A.:
I
Overview
[1] The appellants are plaintiffs in two actions commenced under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “Act”) against the respondent, The Loyalist College of Applied Arts & Technology (“Loyalist”). Ms. Hickey-Button sued on her own behalf and on behalf of all the persons who entered the nursing program at Loyalist in the fall of 1997. Ms. Potter sued on her own behalf and on behalf of those students who entered the same course in the fall of 1998.
[2] In essence, the appellants claim that when they entered the nursing program at Loyalist in 1997 and 1998, Loyalist offered what was referred to as the “Queen’s” option. This option allowed persons who entered the nursing program at Loyalist to obtain a degree in nursing from Queen’s University after four years. The appellant contend that no such option was available. Their claims against Loyalist sound in breach of contract and alternatively in negligent misrepresentation.
[3] The appellants sought certification under s. 5 of the Act. They asked the court to certify the actions as a single class action with two sub-classes, one representing students who entered the nursing program at Loyalist in the fall of 1997 and the other representing students who entered the nursing program in the fall of 1998.
[4] The motion judge dismissed the motion to certify the actions in February 2003. By order dated November 2, 2004, the Divisional Court unanimously dismissed the appellants’ appeal from the order of the motion judge. This court granted leave to appeal the order of the Divisional Court in May 2005.
[5] This court is reluctant to interfere with decisions made on motions to certify under s. 5 of the Act: see e.g. Anderson v. Wilson (1999), 1999 3753 (ON CA), 175 D.L.R. (4th) 409 (Ont. C.A.), leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 476. Certification decisions often involve a careful balancing of competing interests and delicate judgment calls by judges who have developed an expertise in class action proceedings. The deference owed to decisions made on motions under s. 5 of the Act must only grow where the decision is upheld at the first level of appeal.
[6] In the present appeal, however, I am satisfied that both the motion judge and the Divisional Court fell into legal error on matters central to a proper application of s. 5 of the Act. Those errors displace the deference usually paid to decisions on certification motions. On a proper application of s. 5, both actions should be certified.
II
The Allegations and Positions of the Parties
[7] These proceedings have just passed the pleadings stage. In addition to the pleadings, the parties filed affidavits on the certification motion and have cross-examined on some of those affidavits. It is important to bear in mind that at this stage of the litigation, none of the allegations have been proven.
[8] In the spring of 1997, Ms. Hickey-Button submitted an application for admission to the three-year nursing diploma course offered by Loyalist. Her application was made through a centralized process that receives applications for admission to community colleges throughout Ontario. The application was forwarded through this centralized process to Loyalist. Loyalist sent Ms. Hickey-Button a bundle of material describing the nursing diploma course offered at Loyalist. The material made reference to what is known in these proceedings as the “Queen’s” option. That option was described in at least one of the documents forwarded to Ms. Hickey-Button by Loyalist in this way:
In the fall of 1997, we plan to offer a program which has been developed in collaboration with Queen’s University, Kingston. The program will give you the unique opportunity of enrolling in a College for two years and at the end of that time taking a career path which leads to a degree or to a diploma. The degree route will require two more years of study, and the diploma one year. The plan is to offer all theory courses at Loyalist College and to use local health-related agencies for clinical practice. Graduates of both career paths are eligible to write the nurse registration examination in Ontario.
[9] In essence, the “Queen’s” option offered students who successfully completed two years of the three-year diploma course at Loyalist the option of obtaining a degree in nursing from Queen’s University by completing two additional years of the Queen’s nursing program. Those two years could be completed on-site at Loyalist.
[10] Apart from the “Queen’s” option, students who wished to obtain a degree in nursing from Queen’s University had two choices. First, rather than attend Loyalist, they could apply directly to Queen’s University for admission to its nursing degree program. If they could meet the entrance requirements, which were higher than those required for entrance to the nursing program at Loyalist, and if they could afford to go to University for four years, these students could obtain a degree in nursing from Queen’s upon a successful completion of the four year program. Second, students could apply to the diploma course at Loyalist, successfully complete all three years of that course and then attend Queen’s University for an additional two years after which they would obtain a degree in nursing from Queen’s University.
[11] In the affidavit material filed in support of the certification application, the advantages of the “Queen’s” option over the other two possible ways of obtaining a nursing degree were described in this way:
[I]t [the Queen’s option] was preferable to the two traditionally available alternatives, being a four year university program, with higher admission requirements and higher costs, or three years of college study followed by two additional years of university, obviously involving higher costs and a longer delay before workforce entry.
[12] After receiving the material from Loyalist, that included reference to the “Queen’s” option, Ms. Hickey-Button wrote directly to Loyalist confirming her application for admission to the nursing diploma course. Her application was accepted by Loyalist and she entered the nursing program in the fall of 1997.
[13] Some time after Ms. Hickey-Button enrolled in the nursing program in the fall of 1997, she learned that the “Queen’s” option did not exist. Instead, she was informed that negotiations were ongoing between Loyalist and Queen’s to establish that option. She was assured that it would be in place by the fall of 1999 when she would be in a position to take advantage of it. In February 1999, Ms. Hickey-Button learned that the negotiations had broken down and that the “Queen’s” option would not be available.
[14] Ms. Hickey-Button alleges that the written material, including the representation as to the “Queen’s” option, provided by Loyalist to those who applied to the nursing program through the centralized application process constituted representations made by Loyalist. Those representations were to the effect that Loyalist would consider offers by students to enter into a contract with Loyalist whereby Loyalist would provide the nursing program as represented in the material in exchange for payment of the tuition fee described in the material. Ms. Hickey-Button further contended that the applications submitted by her and the other students after they received the material from Loyalist constituted offers by the students to enter into contracts with Loyalist on the terms described in the material sent to the students. Ms. Hickey-Button next maintained that Loyalist’s acceptance of the applications made by her and the other students created a contract, the terms of which included the representations made in the material provided to the students by Loyalist. One of these representations was that the “Queen’s” option would be available to students who completed two years of the diploma course.
[15] In short, Ms. Hickey-Button argued that, in exchange for the payment of tuition to Loyalist by the students, Loyalist promised to provide to the students a nursing diploma program complete with the “Queen’s” option. When Loyalist failed to provide that option, it breached its contract with Ms. Hickey-Button and her classmates.
[16] Alternatively, Ms. Hickey-Button alleged that the material sent to her included a representation by Loyalist that the “Queen’s” option would be available to students who enrolled in the Loyalist nursing program in the fall of 1997. She contended that Loyalist owed her and the other students a duty of care with respect to that representation. She further alleged that the representation was false, was negligently made, and that she and other students relied on it to their detriment when enrolling in the nursing program at Loyalist.
[17] Ms. Hickey-Button contended that her damages included extra costs incurred by virtue of the need to spend an additional year in the educational system, extra costs involved in having to attend a university rather than remain at Loyalist for the entire educational experience, and loss of income resulting from a one year delay in entry into the nursing workforce.
[18] The action commenced by Ms. Potter on behalf of herself and her classmates who applied for admission to the nursing program at Loyalist beginning in the fall of 1998 is virtually identical to Ms. Hickey-Button’s claim with the exception that Ms. Potter contends that the material concerning the “Queen’s” option was provided to her and her classmates in the spring of 1998.
[19] In its defence, Loyalist denied that it provided any false, misleading, or inaccurate information concerning the “Queen’s” option in the material supplied to persons who had applied for admission to its nursing program in 1997 or 1998. Loyalist contended that the material made it clear that the “Queen’s” option was in the developmental stage only. According to Loyalist, it had a reasonable expectation that the option would be developed until January 1999 when Queen’s University unilaterally withdrew from the negotiations to finalize the terms of the option.
[20] Loyalist alleged that it had made clear to all prospective Loyalist students that, in any event, the “Queen’s” option would be available only to students who had completed certain university level courses and had achieved a high minimum grade point average while at Loyalist. Loyalist maintained that, even if the “Queen’s” option had been successfully negotiated between Loyalist and Queen’s, the option would have been available only to a select few students who could meet the stringent admission requirements.
[21] Loyalist contended that the material provided by it to prospective students, including information about the “Queen’s” option, could not in law constitute a contract between Loyalist and its students. Furthermore, Loyalist maintained that even if the material containing the “Queen’s” option could provide the basis for a contractual relationship between Loyalist and its students, the nature and terms of the contract depended on the entirety of the representations made to individual students by Loyalist. These representations included not only representations in the written material provided to students, especially the course calendar, but also oral representations made to students in various informational sessions and attended by some, but not all, of the students who entered the nursing program in 1997 and 1998. Loyalist maintained that the terms of the contract between Loyalist and each of the students could vary from student to student.
[22] Loyalist acknowledged that the contents of the material it provided to prospective students could constitute representations for the purposes of a negligent misrepresentation claim, but asserted that the viability of a negligent misrepresentation claim could be determined only on a student-by-student basis. Individual inquiries were necessary to determine the content of the representations made to each student, and the reliance, if any, placed on those representations by each student.
[23] Loyalist also took the position that neither the appellants nor any members of the prospective class had suffered any damage in that they had not shown that they would have been eligible for entry into Queen’s under the terms of the “Queen’s” option had it come to fruition. Finally, Loyalist contended that neither of the appellants nor any other members of the proposed class had taken advantage of an alternative program available to them through Athabasca University. That program would have placed the students in the same position as the “Queen’s” option.
III
Statutory Provisions
[24] Section 5(1) of the Act provides:
- (1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,
(a) the pleadings or the notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences of the class members raise common issues;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) there is a representative plaintiff or defendant who,
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
[25] The five requirements for certification set out in s. 5 may be summarized as follows:
♦ a cause of action must be pleaded (s. 5(1)(a));
♦ there must be identifiable class of persons (s. 5(1)(b));
♦ the pleadings must reveal issues common to the identified class (s. 5(1)(c));
♦ a class proceeding must be shown to be the preferable procedure (s. 5(1)(d)); and
♦ there must be a suitable representative plaintiff (s. 5(1)(e)).
[26] The first requirement, that is that the pleadings disclose a cause of action, does not raise an issue that is unique to motions to certify under s. 5 of the Act. As with all pleadings, a pleading will fail to disclose of cause of action under s. 5(1)(a) of the Act only where it is plain and obvious that the pleadings disclose no cause of action: Cloud v. Attorney General of Canada (2004), 2004 45444 (ON CA), 247 D.L.R. (4th) 667 at para. 41 (Ont. C.A.), leave to appeal to S.C.C. refused. The determination required under s. 5(1)(a) is to be made by reference to the pleadings and any documents identified in the pleadings.
[27] The requirements in s. 5(1)(b) to s. 5(1)(e) are unique to motions for certification brought under s. 5 of the Act. While each requires separate consideration, certain matters, such as the nature and extent of the common issues, are relevant to all of the requirements. The provisions of s. 5 should be “generously” construed so as to achieve the judicial economy and promote the access to justice envisioned by the Act: Cloud, supra, at paras. 37-39; Hollick v. Toronto (City) (2001), 2001 SCC 68, 205 D.L.R. (4th) 19 at paras. 15 (S.C.C.).
[28] A certification motion is not the time for an assessment of the merits of the claim: Hollick v. Toronto (City), supra, at para. 16. However, the party seeking certification bears the onus of placing materials before the motion judge upon which he or she can be satisfied that the requirements of s. 5 have been met.
IV
Analysis
[29] I will first address what I see to be the errors made by the motion court and the Divisional Court. I will then outline why I think that the appellants have made out a case for certification under s. 5 of the Act.
(a) The Reasons of the Motion Judge
[30] The motion judge described the claims as alleging a “verbal” contract. He went on to conclude that the terms of the “verbal” contract would vary from student to student depending on the information provided to each student by Loyalist prior to the student enrolling in the nursing diploma course. The motion judge held that the merits of the negligent misrepresentation claim could also be determined only a student-by-student basis.
[31] The motion judge mischaracterized the appellants’ contract claim. The appellants maintained that the terms of the contract were to be found in the written material supplied to all students in response to their applications. The appellants did not rely on any oral or “verbal” contract. This mischaracterization of the contract claim may well have influenced the motion judge’s finding that a class action proceeding was not appropriate.
[32] The motion judge did not relate his conclusion that the actions should not be certified to the specific subsections of s. 5. His findings, however, clearly speak to a lack of common issues (s. 5(1)(c)) and implicitly support the conclusion that a class proceeding would not be the preferable procedure (s. 5(1)(d)). The Divisional Court came to the same conclusion on both issues, and I will address the merits of that conclusion when considering the Divisional Court’s decision.
[33] The motion judge did specifically consider s. 5(1)(b). He concluded that there was no identifiable class that would be represented by the appellants. In coming to that conclusion, he said:
One must be able to determine with ease who is and who is not a member of the class. If the merits in the individual circumstances of a person’s claim must be looked at in order to determine whether that person is within the class, then the class is not identifiable. In this case, in order to find out if a student falls within the class, each student would have to be examined under oath because only those students who intended to participate in the Queen’s option who would not have attended Loyalist had the Queen’s option not been offered and who would have qualified to do so, would potentially have a cause of action. The class is not to include persons who do not have a claim [emphasis added] [citations omitted].
[34] As is evident from this passage, the motion judge was satisfied that each student would have a cause of action only if he or she could demonstrate, first an intention to participate in the “Queen’s” option upon entering Loyalist, second, that he or she would not have attended Loyalist “but for” the “Queen’s” option, and, third, that the student would have qualified for that option after two years at Loyalist.
[35] None of the three prerequisites identified by the motion judge are as a matter of law, prerequisites to a successful claim by the students in contract or negligence. If the appellants could demonstrate that a contract existed between Loyalist and the students entering the nursing program in 1997 and 1998, and that the contract included the availability of the “Queen’s” option, the students all had a claim for breach of contract if that option was not available as promised. The three factors identified by the motion judge could at the most have some impact on the damages available to individual students for the breach of the contract. The appellants have never contended that the quantification of damages raises a common issue in these proceedings.
[36] The three factors identified by the motion judge are also not prerequisites to the appellants’ success on the negligent misrepresentation claim. A misrepresentation can be material without being a “but for” cause of a student’s decision to attend Loyalist. There can also be sufficient reliance on a representation to found a negligent misrepresentation claim even if a student had not made a firm decision to take advantage of the “Queen’s” option when that student enrolled at Loyalist. Finally, an inability to qualify for the “Queen’s” option two years after entry to Loyalist would be relevant to the assessment of an individual student’s damages, but would not necessarily foreclose any award of damages based on negligent misrepresentation.
[37] The reasons of the motion judge do not warrant the conclusion that the appellants had not identified a class of persons who would be represented by them in the proposed class action. I will return to this component of s. 5 after I have addressed the reasons of the Divisional Court.
(ii) The Reasons of the Divisional Court
[38] In dismissing the appeals from the refusal of the motion judge to certify the action as a class action, the Divisional Court noted that the motion judge had mischaracterized the plaintiffs’ allegations when he said they alleged a “verbal” contract. The Divisional Court also doubted whether the motion judge had correctly held that the appellants had not properly identified a class of persons for the purposes of s. 5(1)(b). As indicated above, I am satisfied that the motion judge erred in his interpretation of that requirement.
[39] The Divisional Court went on to dismiss the appeal. The court agreed with the motion judge that the allegations made in the claims could only be determined on a student-by-student basis. The court observed that issues such as reliance could only be determined by examining the circumstances “pertinent to the contractual relationship between each student and the College”. The Divisional Court also noted that the measure of damages would vary substantially from student to student. This view of the allegations led the Divisional Court to hold:
We prefer instead to rest our disposition on our conclusion that a class proceeding would not be the preferable procedure for the resolution of the common issues as required by section 5(1)(d) of the Class Proceedings Act. We come to this conclusion because we cannot identify any common issue raised in these actions and, as well, on our view that it would be preferable for each claim to be determined in an ordinary action in which each student wishing to assert a claim would be a named plaintiff in either one action or in separate actions to be tried together. We see no advantage in allowing this action to proceed as a class action in order to effect a fair, just, expedient and cost-effective result. Indeed, we are more inclined to conclude that the opposite would result [emphasis added].
[40] The conclusion that the appellants had not shown that a class proceeding was the “preferable procedure” would normally be accorded substantial deference. In this case, however, that conclusion was premised on the Divisional Court’s finding that there were no identifiable common issues. The court erred in making that finding.
[41] In their pleadings and affidavits filed on the motion, the appellants claim that all of the students who entered in the nursing program at Loyalist in 1997 and 1998 did so under the terms of a contract that included the “Queen’s” option. With respect to the contract allegation, at least the following common issues are raised:
♦ Was the relationship between Loyalist and those students who entered the nursing program in 1997 and 1998 a contractual relationship?
♦ If there was a contractual relationship, did the contract include the “Queen’s” option and, if so, what were the terms of that option?
♦ If there was a contractual relationship, and if the contract included a promise to provide the “Queen’s” option, did Loyalist breach that contract?
♦ If there was a contract and if there was a breach, do any of the general defences advanced by Loyalist (e.g. the availability of the “Athabasca University” alternative) provide a complete defence to the claims?
[42] These common issues are central to the appellants’ contract-based claim. If they are unsuccessful in any of the first three issues, the contract claim will fail. If, however, the appellants are successful on the first three issues, it would seem that the assessment of damages for breach of contract is all that would be left for individual assessments.
[43] In holding that there were no common issues raised, the Divisional court observed that reliance on the existence of the “Queen’s” option would have to be established on a student-by-student basis. In my view, reliance is not a prerequisite to recovery in the breach of contract claim, although it is a precondition to recovery in the negligent misrepresentation claim and may have to be determined on a student-by-student basis. It is, however, no answer to a contention that common issues exist to demonstrate that there are some issues that are not common to all parties of the class. In most actions where certification is sought, there will be both common and individual issues: Cloud, supra, at paras. 73-75.
[44] There are also common issues arising out of the negligent misrepresentation claim. These include:
♦ Did Loyalist owe a duty of care when making representations to students who eventually enrolled in the nursing diploma course?
♦ Did Loyalist make representations as to the availability of the “Queen’s” option?
♦ Were those representations untrue, inaccurate or misleading?
♦ Was Loyalist negligent in making those representations to persons applying for admission to the nursing program?
[45] In summary, there are several common issues raised in respect of both the contract and negligent misrepresentation claim. The Divisional Court’s erroneous determination that there were no common issues undermines its ultimate conclusion that a class proceeding was not the “preferable procedure”.
(b) My Analysis of the Section 5 Requirements
(i) Do the pleadings disclose a cause of action?
[46] The pleadings clearly allege a breach of contract and negligent misrepresentation. Loyalist’s arguments that the claims do not reveal a cause of action are really submissions that the claims will fail on their merits at least with respect to some members of the proposed classes. The ultimate success or failure of the claim is irrelevant to whether a cause of action is disclosed.
[47] Loyalist also argued that the pleadings do not disclose a cause of action because the statements in the material supplied to the students are not binding upon Loyalist and do not form part of the contract. This is a matter for argument at trial. I do not agree with Loyalist’s submission that the terms of a contractual relationship between a student and his or her college or university must be found only in the document described as the course calendar. Many authorities treat the course calendar as a contractual document: see e.g. Sutcliffe v. Governors of Acadia University (1978), 1978 2129 (NS CA), 95 D.L.R. (3d) 95 at 100 (N.S.C.A.). These authorities do not suggest, however, that the terms of the educational contract are limited to the document described as the course calendar.
(ii) Is there an identifiable class?
[48] The class contemplated by Ms. Hickey-Button consists of her and the other twenty-two persons who entered the nursing diploma course at Loyalist in the fall of 1997. The class contemplated by Ms. Potter consists of her and fifty-six students who entered the nursing diploma course in the fall of 1998.
[49] A class of persons is identifiable for the purposes of s. 5(1)(b) if that class is described by objective criteria that can identify its members without reference to the ultimate merits of the action. There must also be some rational relationship between the described class and common issues: Hollick v. Toronto (City), supra, at para. 19; Cloud v. Attorney General of Canada, supra, at para. 45: Pearson v. Inco Ltd. (2005), 2005 42474 (ON CA), 261 D.L.R. (4th) 629 at para. 57 (Ont. C.A.).
[50] The appellants have used readily discernible objective criteria to describe the classes of persons that each proposes to represent. The classes are described by reference to enrolment in a specific course at a specific time at a specific educational institution. There cannot be any difficulty in identifying the persons who qualify for membership. The classes described by the appellants are the antithesis of an open-ended or undefined class.
[51] There is also a close link between the described classes and the common issues. The appellants contend that all members of the class entered into a contract with Loyalist that included the “Queen’s” option and that Loyalist breached that contract in respect of each of the students. Further, it is alleged that Loyalist owed a duty of care to all members of the class and breached that duty in negligently making false statements as to the availability of the “Queen’s” option.
[52] The appellants met the requirement in s. 5(1)(b).
(iii) Are there common issues raised?
[53] I have already identified what I regard as the substantial common issues raised by the pleadings (supra, paras. 41, 44). These issues may well be determinative of the contract claim, apart from the damage assessment, and will go a long way to determining the negligent misrepresentation claims. In any event, the ultimate significance of the common issues to the outcome of the proceedings falls to be determined under the next statutory criterion, that is whether a class proceeding is the preferable procedure: Cloud, supra, at para. 58, Inco, supra, at para. 65.
(iv) Is a class proceeding the preferable procedure?
[54] In Cloud, supra, at paras. 73-75 and again, in Inco, supra, at para. 67, this court summarized the approach to be taken in assessing whether a class proceeding is the preferable procedure for the resolution of the common issues. Bearing in mind the potential advantages of a class action in terms of judicial economy, access to justice and behavioural modification, the court must determine whether the class action provides a fair, efficient and manageable method of advancing the claims made that is superior to other reasonably available means of resolving those claims. In the circumstances of this case, individual actions by the various students provide the only alternative to a class proceedings.
[55] An examination of the common issues and, in particular, the significance of those issues to the overall action will play a key role in deciding whether a class proceeding is a preferable procedure. The more numerous the common issues in the litigation, and the more central those issues are to the outcome of the litigation, the stronger will be the argument for a class proceeding: Inco, supra, paras. 69-74. I have already outlined the numerous common issues raised in these proceedings. I have also indicated that in my view those common issues are central to the outcome of this litigation. If the appellants cannot succeed on those common issues, the action will fail. It is only if the appellants are successful on those issues that various individual issues specific to each student, such as damage-related issues, will have to be determined.
[56] The number of common issues raised by the appellants and their significance to the litigation makes this a case where it can be said that a class proceeding is a “preferable” procedure. The interests of judicial economy would be well served by addressing the common issues in a single class proceeding rather than in a number of individual actions.
[57] Access to justice concerns also favour a class proceeding. On the uncontradicted evidence, some of the students who would be members of the two sub-classes proposed by the appellants cannot afford to pursue their claims on an individual basis. Some, if not many, of the individual students will be entitled, if successful, to relatively modest damages. Considering the costs of litigation, it is understandable that many individual students could not afford that cost or could not justify expending the necessary funds given the relatively modest potential gain.
[58] Behavior modification of the wrongdoers whose conduct may cause widespread harm, even though the quantum of harm done to any particular individual may be modest, is a further benefit flowing from a class proceeding: Inco, supra, at paras. 87-88. The appellants’ claims can be generically described as consumer protection claims. Class action proceedings can call to account those who in the course of selling their product to the public cause widespread, but individually modest, economic harm to consumers. Accountability is an important first step toward behaviour modification: Inco, supra, at para. 87. There is also merit in the contention that behaviour modification has added value when directed at public institutions like Loyalist.
[59] Against what I regard as a strong case for certification, Loyalist points to many individual issues that could possibly arise in the course of these proceedings. On the material that is presently before the court, the possibility of many of these issues actually arising is somewhat remote. In any event, the possibility that individual issues may arise in the course of the class proceeding is no reason to deny certification if it is otherwise the preferable mode of proceeding. The certification process is sufficiently flexible to react to changes in the litigation landscape that occur in the course of the class proceeding.
(v) Are the appellants suitable representative plaintiffs?
[60] Neither the motion judge nor the Divisional Court dealt with this requirement. Counsel did not address any oral argument to this requirement, although Loyalist did argue in its factum that the appellants had not produced a proper litigation plan as required by s. 5(1)(e)(ii).
[61] I see no reason to doubt that the appellants will fairly and adequately represent the interests of the two sub-classes. There is also no suggestion that either appellant has any conflict of interest with other class members. I think questions relating to any deficiencies in the litigation plan submitted by the appellants are best addressed by permitting Loyalist to raise such complaints by a motion under s. 5 of the Act to settle the details of the certification order.
V
Conclusion
[62] I would allow the appeal, set aside the orders of the Divisional Court and the motion judge, and substitute an order granting the motion for certification on terms that are consistent with these reasons. The case should be remitted to the supervision of the Regional Senior Justice or such judge as he or she directs to manage the action. That judge can determine the specifics of the certification order including the description of the common issues.
[63] The appellants are entitled to their costs throughout on a partial indemnity basis. The positions of the appellants were virtually identical, although as I understand it Mr. Reynolds for the appellant Hickey-Button has assumed the lead role on behalf of the appellants. Mr. Reynolds submitted that his client should receive $27,000 on the motion, $15,000 for the appeal in the Divisional Court and $15,000 for the proceedings in this court. The respondent did not take exception to the amounts requested by Mr. Reynolds and argued that Mr. Pretsell, counsel for Ms. Potter, should receive fifty percent of the amount awarded to Mr. Reynolds’ client.
[64] I would award costs to Ms. Hickey-Button in the amount of $27,000 on the motion, $15,000 for the Divisional Court appeal and $15,000 for the proceedings in this court. Those amounts are inclusive of GST and disbursements. I would order costs to Ms. Potter in an amount equal to fifty percent of the amounts awarded to Ms. Hickey-Button.
RELEASED: “DD” “JUN 15 2006”
“Doherty J.A.”
“I agree M. Rosenberg J.A.”
“I agree Robert P. Armstrong J.A.”