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Class Proceeding (Ont) - Individual Damages. Head v. 859530 Ontario Inc.
In Head v. 859530 Ontario Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendants' appeal, this brought against an order which certified a class proceeding against "a long-term care residence, by residents who contracted COVID-19 there, the estates of those residents who died of COVID-19, and their families".
Here the court considers the distinction between certifying of "punitive, exemplary, or aggravated damages as a common issue", and "determination of damages on an aggregate basis as a common issue":2) Did the Motion Judge err in certifying punitive, exemplary or aggravated damages as a common issue?
[16] The motion judge certified punitive, exemplary, or aggravated damages as a common issue, based on evidence in the inspection reports that demonstrated Roberta Place’s non-compliance with IPAC policies and standards. Both the entitlement to punitive damages, and the quantum of said damages were certified. However, the motion judge did not certify determination of damages on an aggregate basis as a common issue.
[17] Roberta Place makes two arguments. The first is that its conduct was in no way “malicious or reprehensible” or “deliberate” so as to justify punitive damages. I reject this argument. The types of conduct that might justify punitive damages are not closed. Punitive damages might well, depending on the specific facts, extend to gross negligence, as Belobaba J. noted in Robertson Estate v. Ontario, 2022 ONSC 5127, 165 O.R. (3d) 528, at para 93, aff’d 2024 ONCA 86, 170 O.R. (3d) 721, leave to appeal refused, [2024] S.C.C.A. No. 122.
[18] Roberta Place’s second argument is that the motion judge failed to recognize that punitive, exemplary, or aggravated damages are ancillary to compensatory damages. Roberta Place argues that punitive, exemplary, or aggravated damages are not free standing; any assessment of the quantum requires a close look at whether the award of compensatory damages itself reflects sufficient “punishment”, citing Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para 94. Since the issue of compensatory damages was not certified but was left to individual trials, there is no base against which punitive, exemplary, or aggravated damages can be referred. This position appears to be based on the assumption that quantification of punitive damages will occur before individual trials for compensatory damages. However, this court has noted that, “Any concern about quantifying punitive damages before compensatory damages can usually be addressed by sequencing trials so that punitive damages are assessed after compensatory damages have been determined”: Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652, at para. 48, citing Robinson v. Rochester Financial Ltd., 2010 ONSC 463, 89 C.P.C. (6th) 91, at paras. 57-61, leave to appeal refused, 2010 ONSC 1899, 262 O.A.C. 148 (Div. Ct.). . Spina v. Shoppers Drug Mart Inc.
In Spina v. Shoppers Drug Mart Inc. (Ont CA, 2024) the Ontario Court of Appeal considered class action franchise appeals (direct and cross) from summary judgment decisions.
Here, after declining to certify aggregate damages as a 'common question', the court endorses the still efficient individual damage assessment techniques set out in the trial ruling:(e) The appropriate solution
[226] I see no error in the motion judge’s proposed solution to order individual damage assessments. As noted above, on the evidence adduced, aggregate damages are not appropriate. Moreover, individual damage assessments under s. 25 of the CPA need not necessarily involve individual trials if a more procedurally efficient process can be designed under an individual issues protocol.
[227] Section 25 gives the presiding judge considerable latitude in crafting efficient procedures and dispensing with unnecessary formalities to assess individual damages in the most cost-effective way possible. As noted in Brazeau v. Canada (Attorney General), 2020 ONSC 7229, 472 C.R.R. (2d) 127, at para. 83, “[c]reativity and the principles of proportionality have a role to play in designing the individual issues stage of a class action.” Section 25 provides that:Individual issues
25 (1) When the court determines common issues in favour of a class and considers that the participation of individual class members is required to determine individual issues, other than those that may be determined under section 24, the court may,
(a) determine the issues in further hearings presided over by the judge who determined the common issues or by another judge of the court;
(b) appoint one or more persons to conduct a reference under the rules of court and report back to the court; and
(c) with the consent of the parties, direct that the issues be determined in any other manner.
Directions as to procedure
(2) The court shall give any necessary directions relating to the procedures to be followed in conducting hearings, inquiries and determinations under subsection (1), including directions for the purpose of achieving procedural conformity.
Idem
(3) In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of determining the issues that is consistent with justice to class members and the parties and, in so doing, the court may,
(a) dispense with any procedural step that it considers unnecessary; and
(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate. [Emphasis added.] [228] While the analysis under s. 24 does not explicitly involve a comparison with s. 25, the third prong of the Ramdath test (whether the denial of aggregate damages will result in a wrong without a remedy and a denial of access to justice) effectively brings into the s. 24 analysis some contemplation of the viability of individual damage assessments under s. 25: see Fulawka, at para. 143.
[229] Individual damage assessments under s. 25 of the CPA need not consist of individual trials. The powers under s. 25(1) include the power to “(b) appoint one or more persons to conduct a reference under the rules of court and report back to the court; and (c) with the consent of the parties, direct that the issues be determined in any other manner.” Counsel may design and seek court approval of a more summary adjudication process, consistent with the Supreme Court of Canada’s observations in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 23-34.
[230] Moreover, under s. 25(3), in assessing damages in the most expeditious and least expensive way that is consistent with justice to the class members and the parties, the court may:(a) dispense with any procedural step that it considers unnecessary; and
(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate. [231] Accordingly, while the design of the individual issues stage must include procedural and evidentiary terms that are consistent with justice to class members and the defendants (Lundy v. VIA Rail Canada Inc., 2015 ONSC 7063, at para. 15), there is considerable flexibility available to craft a fair and efficient process.
[232] In Fulawka, Winkler C.J.O. held that s. 25(3)(b) gives the presiding judge “wide latitude” including “the option of considering if statistical information derived from random sampling, or other methods, would be of assistance in calculating the quantum of individual class members’ entitlement to monetary relief”: at para. 144. He later emphasized that “[t]he effect of these provisions [ss. 25(1)(b) and (c)] is that the court may direct that individual claims to unpaid overtime be determined through procedures other than individual trials”: at para. 158.
[233] The motion judge adverted to this possibility by stating, at paras. 671 and 861, that:[671] I pause to say that in the immediate case the non-availability of an aggregate assessment does not deny the Class Members access to justice. They shall have the resort to individual issues trials pursuant to a protocol provided by s. 25 of the [CPA] that will simplify the assessment of damages.
...
[861] [I]t may be possible to use the resources of s. 25 of the [CPA] to simplify or expediate the individual issues trials. [234] In my view, the possibility of designing efficient procedures to assess individual claims under s. 25(1) helps assuage the Ontario Class’s access to justice concerns.
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