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Class Proceeding (Fed) - Certification - 'Preferrable Procedure'. Voltage Pictures, LLC v. Salna
In Voltage Pictures, LLC v. Salna (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from the dismissal "(for the second time) [of] the appellants’ motion to certify this proposed reverse class proceeding".
Here the court considered the 'preferrable procedure' element of federal class proceedings certification:D. Did the Federal Court err in concluding that a class action is the preferable procedure?
[126] In assessing whether a party seeking certification has established some basis in fact that a class proceeding is the preferable procedure for deciding the common questions, a motions judge is required to assess whether the party seeking certification has established some basis in fact that the proposed class proceeding is a fair, efficient, and manageable method of deciding the common questions and advancing the proceeding and whether it is preferable to other ways of resolving the claim.
[127] The motions judge is required to consider these issues through the prism of the tripartite goals of a class proceeding, namely, access to justice, judicial economy, and behaviour modification: AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949 [Fischer] at paras. 22–23; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at paras. 28–31; Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184 at paras. 35–39; Brake at paras. 85–87; Greenwood at para. 200, Voltage FCA Certification Decision #1 at para. 105; Nasogaluak at para. 16.
[128] As stated in Wenham at paragraph 77:(a) the preferability requirement has two concepts at its core:
(i) first, whether the class proceeding would be a fair, efficient and manageable method of advancing the claim; and
(ii) second, whether the class proceeding would be preferable to other reasonably available means of resolving the claims of class members;
(b) this determination requires an examination of the common issues in their context, taking into account the importance of the common issues in relation to the claim as a whole; and
(c) the preferability requirement can be met even where there are substantial individual issues; the common issues need not predominate over individual issues. ....
[137] A somewhat similar conclusion was recently reached by this Court in Canada v. Stonechild, 2025 FCA 105, where this Court overturned a certification order of the Federal Court largely because the common questions did little to advance the action. Writing for the majority, Justice Rennie stated at paragraph 34:The certification judge failed to consider whether the questions of law or fact common to the class members predominate over any questions affecting only individual members as set out in Rule 334.16(2)(a). As the Ontario Court of Appeal concluded in Bayens v. Kinross Gold Corporation, 2014 ONCA 901 (Bayens), it is difficult to establish preferability where individualized inquiries and fact-finding are both necessary and unavoidable. In that case, the Court found that resolution of such questions did not lend itself to a class action, stating that, “the need for numerous individual inquiries undercuts the goal of judicial economy and could overwhelm the resolution of the common issues, producing an inefficient and unmanageable class proceeding” (Bayens, at para. 129). ....
[142] The preferable procedure analysis in essence asks how far a class proceeding would advance the proceeding by answering the common questions, and how many resources are saved in answering them commonly, as compared to what would happen if the proceeding were not certified and another method to answer the questions were employed: see Brake at paras. 85–86. Courts must adopt a practical cost-benefit approach, which includes a consideration of the impact of a class proceeding on class members, the defendants, and the court: Fischer at para. 21.
[143] Here, as noted, the common questions have minimal importance in relation to the claim as a whole and thus do virtually nothing to advance the claim. I therefore conclude that the Federal Court’s conclusion on preferable procedure cannot stand.
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