Brimner et al. v. Via Rail Canada Inc. et al.

[Indexed as: Brimner v. Via Rail Canada Inc.]

47 O.R. (3d) 793

[2000] O.J. No. 1648

Ontario Superior Court of Justice

Divisional Court

O'Leary, Swinton and McNeely JJ.

April 7, 2000

[Quicklaw note: In the paper version, the three hearings of this case, dated November 12, 1999, January 4, 2000 and April 7, 2000 were published together at 47 O.R. (3d) 793. The three decisions have been separated in the online version to enable linking to citators. The November 12, 1999 ruling begins at 2000 ONSC 29041, 47 O.R. (3d) 798 and the January 4, 2000 ruling begins at 2000 ONSC 29040, 47 O.R. (3d) 795. The following headnote was published on the combined case.]

Civil procedure -- Class proceedings -- Certification -- Preferable procedure -- In considering whether class proceeding would be preferable "procedure" court may consider alternative ways to pursue compensation that exist outside court system -- Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1).

On an application for certification under s. 5 of the Class Proceedings Act, 1992, in considering whether a class proceeding would be the preferable "procedure", the court may consider alternative ways to pursue compensation that exist outside the court system.

Harvey T. Strosberg, Q.C., and Craig J. Allen, for plaintiffs. John A. Campion and Beth G. Beattie, for defendant, Via Rail Canada Inc. Charles F. Scott and William W. McNamara, for defendant, Canadian National Railway Company.

BY THE COURT: -- The issue on this appeal is the meaning of the word "procedure" as used in s. 5(1)(d) in the Class Proceedings Act, 1992, S.O. 1992, c. 6 which reads:

5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(d) a class proceeding would be the preferable procedure for the resolution of the common issues;

Several judges of the Superior Court have decided, and we think correctly decided, that a judge on a motion for certification must consider whether a compensation scheme created by statute or a dispute resolution procedure that would compensate adequately most of those who might be included in a class action is a more preferable method than a class action for resolving the common issues.

It follows then that "procedure" as used in the subsection has wider meaning than procedure by way of other action in the courts.

Once it is conceded that something other than court proceedings may constitute a preferable method of pursuing compensation, then all such alternative methods put before the motions judge must be considered.

It is for the motions judge to decide whether he has before him a definite alternative method of resolving the common issues and, if so, whether it is a preferable procedure to a class action.

Whether there is before the motions court an alternative method of resolving the common issues and whether it is preferable to a class action is something that must be determined by examining the alternate proposal. Little, if anything, is to be gained by asking the proposed plaintiffs' opinion about it. Accordingly, we uphold the decision of the motions judge that the questions asked need not be answered. The appeal is, therefore, dismissed without costs.