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Class Proceedings (Ont) - Procedures [CPA s.12]. David v. Loblaw Companies Limited [res judicata as a substantive right]
In David v. Loblaw Companies Limited (Ont CA, 2025) the Ontario Court of Appeal dismissed a second class proceeding certification motion, here where the plaintiff filed "an amended pleading which, in their view, corrected its deficiencies ...".
Here the court considers CPA s.8(3) ['Amendment of certification order'] (and CPA s.12 'Court may determine conduct of proceeding') advanced in an appellant argument to defeat the respondent's res judicata argument:[24] Second, the appellants submit that it follows from the amended pleading now disclosing a cause of action against Maple Leaf that the Certification Order should be amended to remove the reference to it in paragraph 5 of the Certification Order and to add it to the list of Certified Defendants against whom the Certified Claims will proceed. They point out that the lack of a particularized cause of action was the only bar to certification against Maple Leaf at the time of certification, and is now overcome. The appellants submit that the remedial aim of the CPA supports a broad reading of the powers in ss. 8(3) and 12, encompassing the right to amend the Certification Order in these circumstances. They argue that the motion judge took too narrow an approach to his jurisdiction under these provisions.
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ii. The CPA Does Not Provide a Right to Amend in These Circumstances
[41] Sections 8 and 12 of the CPA are also not of assistance to the appellants. Section 8(3) of the CPA provides that “[t]he court, on the motion of a party or class member, may amend an order certifying a proceeding as a class proceeding.” Section 12 of the CPA provides that:[t]he court, on its own initiative or on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate. [42] Without gainsaying the flexibility of those provisions in other situations, they must always be interpreted in light of their text, context, and purpose, the touchstones of any statutory interpretation: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118.
[43] Here, the relevant context and purpose is that “[t]he CPA is a comprehensive procedural statute to provide for and regulate the conduct of class proceedings in Ontario. It neither modifies nor creates substantive rights” (emphasis added): Hislop v. Canada (Attorney General), 2009 ONCA 354, 95 O.R. (3d) 81, at para. 57, leave to appeal refused, [2009] S.C.C.A. No. 264, citing Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 14; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 17; Ontario New Home Warranty Program v. Chevron Chemical Co. (1999), 1999 CanLII 15098 (ON SC), 46 O.R. (3d) 130 (S.C.), at para. 50; and Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at paras. 27-29; see also Drywall Acoustic, at para. 21.
[44] Maple Leaf’s right to rely on the doctrine of res judicata is a substantive right. It cannot be modified, let alone taken away, by interpreting these sections of the CPA in a manner that would allow for the relitigation of matters that have been finally decided. Put another way, interpreting ss. 8(3) and 12 of the CPA in a way that permits relitigation in the face of the doctrine of res judicata would create a new substantive right for class action plaintiffs, contrary to the context and purpose of the statute read as a whole.
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[45] There exists a discretion not to apply res judicata in a particular case. The discretion exists because there are circumstances in which “the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 53. However, where the order that gives rise to res judicata was made in court proceedings as opposed to an administrative hearing, the discretion is “very limited”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 62, citing G.M. (Canada) v. Naken, 1983 CanLII 19 (SCC), [1983] 1 S.C.R. 72, at p. 101.
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