Common Sense Meets Class Actions: If No Loss, Then Nothing To Certify

Certification of a proposed class action will be denied when a plaintiff fails to present evidence that he or she has incurred any compensable loss. That was the conclusion of an Ontario Superior Court judge in the recently released decision in Maginnis and Magnaye v. FCA Canada et al, 2020 ONSC 5462 (“Maginnis”). Significantly, in denying the plaintiffs' certification motion, the judge confirmed that “some evidence of compensable loss is a fundamental prerequisite for the certification of a class proceeding”, absent which certification will be denied on numerous grounds, including the element of “preferable procedure”. A team of Fasken litigators acted as legal counsel for FCA on this certification motion.