The Ontario Superior Court has for the first time awarded aggregate damages on a class-wide basis in Ontario. In Ramdath v. George Brown College, the court cites a balance between accuracy and access to justice in awarding damages to students enrolled in a graduate program based on false misrepresentations.
Facts of the Case
This case stemmed from misrepresentations made by George Brown College regarding benefits of its International Business Management Program. George Brown falsely stated that by completing the eight-month program, students would obtain three industry designations in addition to a graduate certificate. The students, the majority of whom had come from around the world, discovered on arrival that George Brown had no agreements in place with any of the three industry associations and that no such designations would be awarded.
The Test for Aggregate Damages
In determining whether aggregate damages are appropriate in a consumer protection context, the court held the “overarching proposition” to be as follows:
The court may award aggregate damages under s. 24(1)(c) of the CPA if the evidence put forward by class counsel is sufficiently reliable to permit a just determination of all or part of the defendant’s monetary liability without proof by individual class members.
In particular, the court identified three factors in determining whether aggregate damages should be awarded:
- 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 justice.
Expert Evidence in Establishing Aggregate Damages
The plaintiffs established damages on an aggregate basis through expert evidence of Dr. Michael F. Charette, a labour economist and professor at the University of Windsor. Dr. Charette relied on data from international student records provided by George Brown during discovery, estimates of living expenses taken from the George Brown Guide for International Students and Canadian census data.
The court held that certain administrative fees, student association fees, costs for textbooks and supplies, health/medical insurance and travel costs could accurately be determined on an aggregate basis as set out in schedules to Professor Charette’s report. The court, although initially hesitant to find that the residual value of the degree to be deducted from any damages could be determined on an aggregate basis, accepted evidence from “an experienced job-market witness” regarding the market value measure of the degree.
The court found that lost income based on attendance at the program and delayed entry into the workforce could not reasonably be determined without proof by individual class members. However, it did so not on principle but rather on the basis of the expert’s methodology, holding that Professor Charette’s methodology was “not reliable and would not result in a just determination of the defendant’s monetary liability.” The court thus seems to leave open the possibility that aggregate damages may have been recoverable if not for the “unreliable assumptions” underlying the expert’s methodology.
What This Means for Class Action Defendants
The court began its decision by stating that “[a]ggregate damages are essential to the continuing viability of the class action” and that “[a]ggregate damage awards should be more the norm, than the exception.” In addition to accepting expert evidence to establish aggregate damages, it held that “[t]he size of the class, whether in the thousands, or as here, less than 100, should not be determinative,” and that “the possibility that some class members who did not actually suffer damages will receive a share of the award does not preclude the award of aggregate damages.” In addition, the court awarded damages on a class-wide basis notwithstanding variance between international, domestic, graduating and withdrawing students.
In particular, the court stressed that “the measurement criterion is not what’s accurate but what’s reasonable,” and that in balancing accuracy with access to justice “the legislature intentionally tilted the balance in favour of access to justice.” Defendants in class actions should thus be prepared that courts will favour aggregate damages in the interests of justice over more formal arguments for damages on an individual basis.