Certification Denied In Proposed Class Action Against Hydro One Alleging Widespread Billing Problems

Overview

Justice Perell's November 28, 2017, decision in Bennett v Hydro One Inc., 2017 ONSC 7065 [Bennett] to deny certification of a putative class action alleging that Hydro One was systemically negligent in billing customers serves as a powerful reminder to class litigants: where common issues are not a substantial ingredient of putative class members' claims, the common issues requirement will not be satisfied. The variety of potential causes of the putative class members' alleged harm and the fact that any harm suffered by individual class members diverged (if it existed at all) led Justice Perell to conclude the claim lacked the requisite basis in fact to satisfy the common issue requirement. The lack of common issues, coupled with the jurisdiction and powers of the Ontario Energy Board (OEB), also resulted in the conclusion that the preferable procedure requirement for class certification was not satisfied. On these bases, class certification was denied.

The Decision

The Common Issue Requirement Was Not Met

The plaintiff proposed a series of common issues relating to the causes of action advanced: negligence, breach of contract and unjust enrichment. Each cause of action arose from the same factual nexus, namely the alleged systemic negligence of Hydro One in connection with a new billing program.

Justice Perell reviewed the established law regarding the common issue requirement. While the requirement sets a "low bar" for plaintiffs, it requires an issue that is a "substantial ingredient of class member's claim and its resolution must be necessary to the resolution of each class member's claim." A common issue need not be dispositive but, through its resolution, it must advance the litigation.

Having acknowledged that some basis in fact is required to satisfy the common issue requirement, Justice Perell held that the claim as alleged could not clear the low bar of the common issue requirement. Central to his conclusion was the need for individual inquiries regarding the existence and cause of any billing issues experienced by class members.

Justice Perell was critical of the putative class' decision to pursue their claim as one of systemic negligence, because the class could not establish a basis in fact that Hydro One's billing practices caused a common harm to all class members.

Justice Perell noted that Hydro One had made a multiplicity of errors (overbilling, under billing, delayed billing, etc.). As the alleged systemic issues...