Species of Predominance

Arguments against certification generally fall within one of two categories: merits-based; and predominance-based.

Merits-based arguments violate the ‘certification is not a merits determination’ rule and are easily dismissed, but only when identified. They can slip through undetected, for example, under the judge-made ‘air of reality’ test, an application of the “some basis in fact” test that requires proof of the claim itself, and under the unlegislated behaviour modification analysis at preferable procedure.

Predominance-based arguments are a cinch for the defence bar to make, and fortunately, are even easier for others to identify. But they too can go undetected. As long as defence lawyers continue to make them, courts will occasionally accept them. I call the three species of predominance “existentialism”, “differentialism”, and “captivism”. See my Sharp Stick on how to use “ism” and “ity” to create sophisticated doctrines out of simple concepts.

Class actions legislation provides a response to each of these species of predominance.

(i) existentialism
“Existentialism” refers to the presence of individual issues. There are individual issues.

Review the elements of ‘legal transactions’ under the Philosophy section of my blog. Most provinces require only a single “common issue”, so certification can issue if legal transactions share just one core element. Unfortunately, certification has been refused where there’s but a single individual issue. It only takes one bad apple to spoil the bunch.

In astronomy, different constellations can have a common star. In music, the note C and its enharmonic equivalents B# and Dbb, are common to Ab, G#, F, Ami, DbMa7, G#7, Dmi7, Eb", and Gb7(#11) chords. Musical chords that have a common note are analogous to legal claims that share a common factual or legal issue. Each has a common ingredient.

The certification standard advocated for by defendants and accepted by some judges would require a same chord or the “same claim”. That standard is informed by predominance-based thinking. Courts have accepted the “same claim” standard to preclude a finding of a cause of action and an identifiable class. Most provinces expressly allow a finding of common issues, whether or not they predominate over individual issues. Predominance is an express preferability factor in five provinces. It is nowhere a legislative requirement, but the judicial acceptance of judicial economy has invited predominance arguments in every province.

(ii) differentialism
This is the easiest species of predominance to identify. The words “different”, “not identical”, “unique”, and “various” give it away. They seek to explain the obvious – that different class members had different experiences. That is an inescapable fact of every class action. Just as everybody has a unique fingerprint, every claimant has a unique claim. Class actions may be certified amidst such diversity. Provincial legislation has a high tolerance for claims diversity, calling for “common” and not “same” issues, and “common but not necessarily identical” facts. Even the judge-made “commonality” concept falls short of “identicality”. The many “differentialities” should not defeat certification.

(iii) captivism
Another species of predominance is what I call the “captive theory” of class actions. Examples are:

“Captivism” is the false assumption that certifying a class action will require every class member to step up to the plate and prove their individual issues, and whether the class has 100, 1,000, or 1,000,000 members and whether any class member chooses to participate in the individual issues procedures or not. The argument has upset certification even where there were only 215 proposed class members, and where the individual issues could be proven by documentary evidence without class member participation.

Under this species of predominance, even when legal transactions share many common elements, the Court would inevitably have to try each non-common element for every class member, whether anyone want their individual issues resolved or not. On that thinking, the more class members and individual issues there are, the more cumbersome, unmanageable, and uneconomical the class action will be. If there are a million class members and one individual issue such as limitations, there will be one million individual trials with or without a class action -- so why bother certifying at all? Under the wrong thinking of “captivists”, if a class action is certified, every class member must resolve their individual issues, and must do so in a full blown trial rather than in some other courtapproved procdure. The poster child of the “captive theory”, and a staple of the defence bar CANS, is Mouhteros v DeVry Canada Inc. (1998), 41 OR (3d) 63 (Gen. Div.), where Winkler J. stated at ¶31: “...what common issues there may be are completely subsumed by the plethora of individual issues, which would necessitate individual trials for virtually each class member.” With such typically exaggeratory, adverbially-injected language, I must pause to be picky. First, the word “trial” is never used in relation to individual issues in any statute. Second, “virtually” is an adverb of 15th century origins that now colloquially means “almost” or “nearly”. In philosophy, “virtually” has been defined as “that which is not real”. The latter definition is more apt to characterize this passage from Mouhteros because it frankly lacks reality vis a vis provisions throughout Canada that parallel the following:

29(4) The court shall set a reasonable time within which individual members of the class or subclass may make claims pursuant to this section respecting the individual issues.
(5) A member of the class or subclass who fails to make a claim within the time set pursuant to subsection (4) may not make a claim pursuant to this section respecting the issues applicable only to that member except with leave of the court.

Because of those subsections, there will only be as many individual issues trials as there are class members who elect to participate within the time permitted by the Court and only if the Court can and does use “trials” as the most fair and efficient procedure. No class member is ever obliged to participate in the procedure that the Court accepts. While some provinces have “opt out” rather than “opt in” legislation, every province is ultimately “opt in” when it comes to taking the ball to the goal line respecting individual claims.

A danger of the “captive theory” is that the greater the number of proposed class members there are, the more insignificant the common issues appear. But because of the provision cited above, there is no intellectual difference between a class action involving 100 class members and one involving 1,000,000. There may be an administratively practical difference beginning if, and only if, 101 class members participate in the individual issues resolution procedure in the latter. The legislature included s. 12(1) of The CAA, effectually a judicial ‘panic button’, for cases that later, on evidence rather than in terrorem, defence-bar fear mongering, prove to be unmanageable in the postcertification administration process.

Class actions have been around for many years in Canada, and I have yet to see any class member strong-armed into a mandatory trial against their will. Certifying a class action will not hold them captive. Appellate courts should firmly and authoritatively reject the “captive theory” in no uncertain terms.