The Optimum Solution: Justice Perell Urges Fairness And Restraint In Awarding Aggregate Damages

• Author: Canadian Class Actions Monitor, Madeleine Brown and Alexa Jarvis
• Law Firm: McCarthy Tétrault LLP
• Published date: 31 May 2023

Overview

After more than a decade of litigation, the litigants in Spina v. Shoppers Drug Mart Inc., 2023 ONSC 1086 finally have a decision on the merits. Success was divided. To the extent liability could be established, Justice Perell held that damages ought be proven by way of individual issues trials.

Spina confirms important legal principles governing aggregate damages claims. In particular, the decision is a reminder that the social utility of aggregate damages in a class proceeding does not excuse a plaintiff who seeks such an award from their obligation to demonstrate that aggregate damages are available and appropriate in the circumstances.

Before granting an award of aggregate damages, the Court must be satisfied that the defendants' monetary liability can be "fairly and reasonably" determined without proof by individual class members, and that there is a viable methodology. If the plaintiff cannot meet this burden, the appropriate means through which to quantify damages will be by individual issues trials.

Background

Spina arose from a franchise dispute between pharmacists who owned and operated Shoppers Drug Mart stores as franchisees (the "Associates") and Shoppers Drug Mart (and its parent company and affiliates, collectively "Shoppers").

The claims were based around two franchise contracts; referred to as the 2002 Associates...