It is not often that a complaint that a party was denied
procedural fairness succeeds. In Levac v. James, 2017 ONCA 842, the
Ontario Court of Appeal considered whether the defendants'
rights to procedural fairness could be compromised where the court,
of its own motion, departed from the strict wording of a mutually
agreed formulation of the common issues without asking the parties
for further submissions (written or oral).
The question before the Court of Appeal was whether – and
if so, when – reformulation of a common issue that the
parties had agreed upon constitutes a breach of procedural
fairness.
Agreed Common Issues
The plaintiff brought a motion seeking certification and partial
summary judgment against the defendant in a class action. It
alleged, inter alia, that the defendants had negligently
caused a bacterial infection outbreak. There was a substantive
dispute between the parties as to the proper formulation of the
common issues. The parties advanced
