Plaintiffs were passengers on train that derailed. Action was certified as class action and had 45 class members. Defendant confessed judgment for four of five common issues. Parties participated in mediation, but it was not successful. Defendant made offers to settle. Class counsel refused to communicate offers to settle to class members on basis that it was premature to do so. Parties were not able to agree on how to proceed. Plaintiffs brought motion for order granting judgment on common issues; order appointing adjudicator; order setting terms of order under which adjudication would be conducted; and awarding plaintiffs costs of certification motion and of action. Motion granted. Common issues that defendant confessed to were not dispositive of action and action was about to enter individual issues stage. Order under s. 25 of Class Proceedings Act, 1992 (Ont.), was required. Section 25 of Act required court to define issues to be resolved in further hearing that would constitute individual issues stage of class action; determine who would decide issues; give necessary directions relating to procedures for individual issues stage; and set reasonable time limit for individual claims. Before resort could be made to s. 25 of Act, common issues stage must formally be brought to end and parties agreed judgment should issue for four common issues. With grant of judgment and entry into individual issues stage, there should be assessment of costs of class action up to completion of common issues stage. Class counsel was correct not to disseminate offers to settle until common issues stage had formally concluded. Before offers could be disseminated, common issues stage of class action had to be formally completed by judgment ordered; individual issues litigation plan needed to be negotiated and settled; offers to settle needed to be amended to undifferentiated lump sums; and notice to class members under s. 18 of Act had to be prepared.
Lundy v. VIA Rail Canada Inc. (Mar. 23, 2015, Ont. S.C.J., Perell J., File No. CV-12-447653-00CP) 250 A.C.W.S. (3d) 563