Ontario Superior Court Decides Bellwether Individual Issues Trials in Class Action

Written By Ethan Schiff and Marshall Torgov

In Reddock v Attorney General of Canada, 2024 ONSC 3238, the Ontario Superior Court released a post-common issues trial decision regarding the additional damages, if any, five plaintiffs were entitled to as a result of the placements in administrative segregation in Canadian prisons.

The damages determinations for the five individual plaintiffs are "bellwether cases" meant to provide guidance for the other individual claims. This process was set out in a protocol established through section 25 of the Ontario Class Proceedings Act, 1992 (the Ontario CPA), which provides a court with broad discretion to determine individual issues after a class action common issues trial. In this decision, three of the five class members received additional compensation of varying quantum. Two received no additional compensation.

This decision highlights how, following common issues trials, courts can implement creative procedural mechanisms to determine individual issues. It also demonstrates the significant work required to determine individual issues, even after a common determination of liability. The bellwether trials took place over five days, included disputes of factual background and expert evidence and the decision is 87 pages long.

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• Although the common issues trial in this matter determined liability, there is no reason why an individual issues trial under section 25 of the Ontario CPA could not also be used to determine bellwether cases on individual liability issues.
• The application of section 25 of the Ontario CPA is limited to post-common issues trial determination of individual issues. In Carcillo v Canadian Hockey League, 2023 ONSC 4983, the Court declined to order "procedural innovations that are beyond the court's jurisdiction" under section 25 without a common issues trial having occurred first.
• Though the defendant led evidence that, in some instances, individual class members requested administrative segregation, the Court declined to consider such issues because the common issues trial determined that no instance of administrative segregation could be considered voluntary.
• The Court declined to award punitive damages in any of the cases given the common issues aggregate damages award already accounted for "deterrence and vindication".

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