In Keatley Surveying Inc. v. Teranet Inc.(which we previously wrote about), Justice Sachs addressed the contentious issue of whether, in addition to proposing a proper class definition, a plaintiff must establish theexistence of an identifiable class of two or more potential class members who are interested in pursuing their claims by way of a class action. After reviewing the applicable and diverging case law, Justice Sachs determined that, at least in Ontario, a plaintiff is only required to propose a class definition that provides for an identifiable class of two or more people – a plaintiff is not required to establish the actual existence of two or more potential class members. This decision, which differs from the approach adopted in other cases (including a recent decision of the British Columbia Court of Appeal), raises the spectre of the massive and complex class action process being engaged for the benefit of a single complainant.
In denying certification of the plaintiff’s copyright infringement claim, the motions judge concluded that, among other things, the plaintiff had failed to provide some evidence of the existence of an identifiable class of two or more potential class members who “desired” to pursue their claims by way of a class action. The plaintiff appealed, in part, on the basis that the motions judge erred in principle by imposing the “desirousness” test as part of the identifiable class requirement.
A Theoretical Class May Be Sufficient
In the course of her analysis, Justice Sachs noted that the “desirousness” test had been endorsed in a number of Ontario and British Columbia cases, including decisions rendered by the former and current Chief Justices of Ontario. After considering those decisions, Justice Sachs reviewed the Supreme Court of Canada’s decisions regarding the identifiable class requirement, including its recent decision in Sun-Rype Products Ltd. v. Archer Daniels Midland (which we previously wrote about). Justice Sachs also assessed whether the purposes of the identifiable class requirement or the goals of a class action necessitated the “desirousness” test.
Justice Sachs determined that neither the statute, the governing jurisprudence, nor any other relevant consideration required the imposition of the “desirousness” test as part of the identifiable class requirement. Therefore, Justice Sachs ultimately concluded that, regardless of the nature of the claim, a plaintiff is not required to establish the existence of an identifiable class of at least two people who wish to pursue their claims by way of a class action.
This contentious issue involves competing considerations of fairness: on the one hand, courts are seeking to enhance access to justice; on the other hand, courts are concerned about ensuring that parties are not unnecessarily subjected to the significant burden associated with class actions. Although Justice Sachs’s decision may enhance the goal of access to justice by eliminating the need for individuals to overcome potential individual barriers to litigation in order to pursue a class action, it raises the spectre of the class action process being used at the insistence of, and for the sole benefit, of a single person – a situation that has concerned a number of other judges and that they have sought to avoid. It remains to be seen whether Canadian courts will follow Justice Sachs’s approach on this issue or whether they will prefer the approach adopted by other judges in Ontario and the rest of Canada.