The Ontario Divisional Court's Preferred Approach To The Preferable Procedure Analysis

In Curtis v. Medcan Health Management Inc., 2022 ONSC 5176 (Curtis), the Divisional Court overturned the Ontario Superior Court's dismissal of the plaintiffs' certification motion and certified the appellants' class action. The Divisional Court interfered with the certification judge's decision on the grounds that he erred in assessing the "preferable procedure" criterion under s. 5(1)(d) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the CPA).

The Divisional Court's decision clarifies the analytical framework for the preferable procedure analysis under the CPA. Moreover, the decision reminds litigants that appellate courts can interfere with lower court findings with respect to the certification criteria, including the preferable procedure analysis. In this latter regard, the decision represents a rare instance in which an appellate court has interfered with a certification judge's evaluation of "preferability" — an exercise that has generally warranted