Aggregate Damages: Why Courts Should Embrace the “Potential Liability” Test

By Oksana Romanov, JD with Distinction (2023), Lincoln Alexander School of Law, TMU In Memory of the Honourable Justice Edward P. Belobaba This May 4, 2023, the legal community lost one of the extraordinary Canadian class action jurists, the Honourable Justice Edward P. Belobaba. Although common law keeps moving relentlessly forward from precedent to precedent, and class proceedings are no exception, some older decisions deserve a look back. Justice Belobaba’s endorsement of the expansive approach to awarding aggregate damages in Ramdath v George Brown College [Ramdath] is one of those exceptions. Below I outline two competing approaches – the expansive and restrictive one – to awarding aggregate damages under section 24 of the Class Proceedings Act [CPA] and the most recent trend in awarding aggregate damages. I conclude that courts should revisit the “potential liability” test set out in Markson v MBNA Canada Bank [Markson] because it reflects a flexible and access to justice-oriented approach to interpreting

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