The Ontario Court of Appeal recently upheld what it noted to be
the first award of aggregate damages under s. 24 of Ontario's
Class Proceedings Act. In
Ramdath v George Brown College, the Court considered the
interplay between class actions and consumer protection legislation
and confirmed that aggregate damages may be available in consumer
protection class actions.
In 2010, students commenced a class action against a George
Brown College (GBC) concerning a misleading representation about a
GBC post-graduate program. Course calendars for GBC's program
in International Business Management suggested that students could
earn three industry designations though the program, when in fact
students could only earn a graduate certificate.
The overall essence of GBC's cross-appeal was that the class
members were required to prove a causal link between the unfair
practice (GBC's misrepresentation) and damages. GBC argued that
proving causation and quantifying damages would depend on proof of
individual issues, such as the extent to which class members relied
on GBC's misrepresentation. Accordingly, GBC took the position
that aggregate damages could not be assessed on a class-wide
In rejecting GBC's cross-appeal, the Court stressed that the
statutory claim for unfair practice was specifically designed to
remove any reliance requirement in misrepresentation cases. In the
view of the Court, GBC was effectively attempting to reintroduce
reliance as an element of Consumer Protection Act
The Court agreed that proof of causation was required. However,
the Court held that the relevant causal link is the link between
the impugned agreement and the damages suffered. In other words,
the consumers must have suffered damages flowing from an agreement
entered while the defendant was engaged in an unfair practice. The
extent to which the unfair practice actually induced the consumer
to enter the agreement is irrelevant. Thus, in the Court's
view, proof of reliance is not an individual issue that precludes
the possibility of an aggregate damages award.
The following takeaway points on aggregate damages emerge from
the Court's decision:
The Court endorsed the trial judge's suggested criteria for
deciding whether aggregate damages should awarded, which is as
The reliability of the non-individualized evidence that is
being presented by the plaintiff;
Whether the use of this evidence will result in any unfairness
or injustice to the defendant (for example, by overstating the
defendant's liability); and
Whether the denial of an aggregate approach will result in a
wrong eluding an effective remedy and thus a denial of access to
Consumer Protection Act unfair practice claims
do require proof of causation. However, the relevant
causal link is the link between entering the impugned agreement and
suffering damages. In this context, it is not necessary for
consumers to individually prove that they relied on a
misrepresentation that caused them to enter the agreement. Moving
forward, we expect that the causal link between the agreement and
damages will be an important battleground in future unfair practice
Aggregate damages will not be appropriate in all unfair
practice claims. In fact, the trial judge in this case initially
accepted that the residual value of the program would depend on
each student's individual career goals. Aggregate damages may
not have been available if the trial judge assessed damages based
on this premise. However, GBC's own expert surprised the trial
judge by testifying that neither the designations nor GBC's
certificate had any significant value in the industry. This lead
the trial judge to conclude that damages could be calculated on a
class-wide basis, without proof by individual class members.
Defendants can take some solace in that this case may be
distinguishable in future cases due to its unusual facts.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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