Lipson v. Cassels Brock & Blackwell LLP dismissed as statute barred

November 24, 2011 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: News

In Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724, Perell J. of the Ontario Superior Court of Justice in a well written and fascinating judgement dismissed the Lipson class action claim against Cassels Brock & Blackwell LLP as being statute barred ie. the Plaintiffs had not brought their action within the statute of limitation. As well a third party claim against Mintz & Partners LLP, Deloitte & Touche LLP, Glenn F. Ploughman, Shelley Shifman, Prenick Langer LLP, TMK Financial Group Ltd., Gardiner Roberts LLP, the Estate of Ronald J. Farano, and others was dismissed as well. According to the decision “Cassels Brock, Gardiner Roberts LLP, and the Farano Estate submit that Mr. Lipson’s claims and the claims of all the Class Members in negligence and in negligent misrepresentation are statute-barred.” The facts of the case are important and specifically when did the plaintiff discover his claim. Was it when CRA turned down the donation scheme, was it when the Vancouver law firm Thornsteinssons was retained on behalf of the unsuccessful investors or was it when the investors settled with CRA that they knew they had a claim? Perell decides: “In the case at bar, as soon as the letters from Canada Revenue started to arrive, Mr. Lipson and the Class Members knew or ought to have known that Cassels Brock’s opinion had caused them damage because they had actually relied on the opinions, or, but for those opinions they would not or could not have participated in the Timeshare Program and suffered damages. Given that Canada Revenue was challenging the validity of the trust, the validity of the gift, the donative intent of the participants, and the value of the donation, the donors knew that Canada Revenue could successfully deny the tax credit.” Perell continues “[151] The Class Members had all of the material facts necessary to determine that they had grounds for understanding that they had a tort claim against Cassels Brock. The Class Members may not have known the full extent of what it was going to cost them for having participated in the Timeshare Program but they did know that there had been harm caused because of Cassels Brock’s opinions.”

The decision is located at: http://www.canlii.org/en/on/onsc/doc/2011/2011onsc6724/2011onsc6724.pdf Below is part of text of the decision from CanLii:


CITATION: Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724

COURT FILE NO.: 09-CV-376511

DATE: November 14, 2011

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jeffrey Lipson

Plaintiff

- and -

Cassels Brock & Blackwell LLP

Defendant

- and -

Mintz & Partners LLP, Deloitte & Touche LLP, Glenn F. Ploughman, Shelley Shifman, Prenick Langer LLP, TMK Financial Group Ltd., Gardiner Roberts LLP, the Estate of Ronald J. Farano, deceased, John Doe 1-100, John Doe Inc. 1-100, John Doe Partnership 1-100, John Doe LLP 1-100

Third Parties

Proceeding under the Class Proceedings Act, 1992

COUNSEL:

•      Peter L. Roy and J. Adam Dewar for the Plaintiff

•      Peter H. Griffin and Shara N. Roy for the Defendant

•      Sean Dewart and Tim Gleason for the Third Parties Gardner Roberts LLP and The Estate of Ronald Farano, deceased

HEARING DATES: November 7 and 8, 2011

PERELL, J.

REASONS FOR DECISION

A.    INTRODUCTION
[1]          Between 2000 to 2003, Jeffrey Lipson and about 900 other Canadian taxpayers participated in a Timeshare Program in which they donated both cash and also resort timeshares to Canadian athletic associations. Mr. Lipson and the donors anticipated receiving tax credits for their charitable donations. In the marketing of the Timeshare Program, a tax opinion prepared by the law firm Cassels Brock & Blackwell LLP, was included in the promotional material. The Cassels Brock opinion was that it was unlikely that the Canada Customs and Revenue Agency could successfully deny the tax credits. Mr. Lipson says that he and the other participants would not have participated in the program but for the opinion of a reputable law firm that the charitable tax credits under the Income Tax Act would be available.

[2]          In 2004, Canada Revenue disallowed the anticipated tax credits in their entirety.

[3]          In 2004 and 2005, Mr. Lipson and other participants sought advice from Thornsteinssons LLP, a law firm that specializes in tax litigation, and in 2006, some of the participants commenced litigation against Canada Revenue as test cases to determine the availability of the tax credits for the donations.

[4]          In 2008, the test case litigation settled, and Canada Revenue allowed the participants to receive a tax credit for the cash portion of the donation. Mr. Lipson and the other participants in the Timeshare Program, however, were denied the greater part of their anticipated tax credit based on the value of the donated timeshares.

[5]          In 2009, to recover his losses, Mr. Lipson commenced a proposed class action against Cassels Brock for damages for negligence and negligent misrepresentation.

[6]          Cassels Brock brought third party claims against Mintz & Partners LLP, Deloitte & Touche LLP, Glenn F. Ploughman, Shelley Shifman, Prenick Langer LLP, TMK Financial Group Ltd., Gardiner Roberts LLP, the Estate of Ronald J. Farano, deceased, John Doe 1-100, John Doe Inc. 1-100, John Doe Partnership 1-100, John Doe LLP 1-100. These third parties were involved in the promotion and marketing of the Timeshare Program.

[7]          Mr. Lipson now brings a motion for certification of his action as a class action under the Class Proceedings Act, 1992, S.O. 1992, c. C.6.

[8]          Cassels Brock and the third parties Gardiner Roberts and the Farano Estate oppose the certification of Mr. Lipson’s action as a class proceeding and, among other things, they submit that the claims of all the Class Members, including most particularly Mr. Lipson,  are statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[9]          Cassels Brock also submits that Mr. Lipson’s proposed class action does not satisfy the common issues, preferable procedure, and suitable representative plaintiff criteria of the test for certification. Further, Cassels Brock submits that Mr. Lipson’s negligence claim does not disclose a reasonable cause of action or it is a disguised and defective negligent misrepresentation claim purporting to obviate the reasonable reliance and causation elements of the tort.

[10]        For the Reasons for Decision that follow, it is my opinion that Mr. Lipson’s proposed class action is statute-barred and, therefore, it should be dismissed.

[11]        Further, it is my opinion that, but for the fatal statute bar, Mr. Lipson’s action would have satisfied the criterion for certification, although I should acknowledge that: (a) some of the proposed common issues do not meet the test for commonality and require revision; and (b) Cassels Brock had a strong, albeit ultimately unsuccessful argument that a class proceeding was not the preferable procedure for the resolution of the Class Members’ claims.

[12]        After this introduction, I will explain my opinions by: (a) describing the evidentiary background; (b) describing the factual background; (c) analyzing whether Mr. Lipson’s action satisfies the criteria for certification ignoring Cassel Brock’s, Gardiner Roberts’ LLP and the Farano Estate’s arguments that the action is statute-barred; (d) analyzing whether the Class Members’ claims are statute-barred; and (e) concluding with some directions about the determination of costs for the certification motion and directions about the resolution of the third party claims. 

B.    EVIDENTIARY BACKGROUND
[13]        The evidentiary record for the certification motion was as follows:

•  An affidavit of Mr. Lipson, who was cross-examined for the certification motion.

•  An affidavit from Alexandra Carr, an associate lawyer at Roy Elliott O’Connor LLP, proposed class counsel. She appended a transcript of a cross-examination of Harley Mintz from another action with respect to the Timeshare Program.

•  Affidavits containing an opinion from law professor, Vern Krisna, who was retained by Mr. Lipson to provide an expert opinion on the nature of the Timeshare Program’s tax credits and on the validity or appropriateness of the legal opinions prepared by Cassels Brock about the tax credits for charitable donations. Professor Krisna was cross-examined for the certification motion.

•  An affidavit from Eric Wagner, an articling student with the law firm of Lenczner Slaght Royce Smith Griffin LLP, the lawyers of record for Cassels Brock. He collected materials associated with the Timeshare Program.

•  The transcript of a cross-examination of Stephen Elliott, one of the promoters of the Timeshare Program.

C.    FACTUAL BACKGROUND
1.    The Timeshare Program
[14]        Around 2000, Stephen Elliott and Steven Mintz approached the accounting firm, Mintz & Partners with the idea of a Timeshare Program that would provide tax benefits to participants. Steven Mintz’s brother Harley was a partner of the accounting firm.

[15]        Messrs. Elliot and Mintz’s idea was that participants in the Timeshare Program would donate timeshares to a Canadian amateur athletic association along with sufficient cash to discharge the encumbrances against the timeshares. In return for the donations, the athletic association would provide the participants with tax receipts for the charitable donations.

[16]        The Timeshare Program was established, and Mintz & Partners established an entity known as Tuscany Marketing Services to oversee the marketing of the program.

[17]        Many participated in the marketing of the Timeshare Program, including Venturedge Corporation, which was a corporation owned by Gerald Prenick and Morris Langer, the principals of Prenick Langer LLP, another accounting firm and a third-party to these proceedings.

[18]        More precisely, the structure of the Timeshare Program and of the associated marketing campaign was as follows:

•    Mr. Adrian Crosbie-Jones, a resident of the Bahamas, purchased timeshares in a Caribbean resort, which he settled (conveyed) to a trust known as the Athletic Trust of Canada.

•    The Athletic Trust had two classes of beneficiaries. One class was the capital property beneficiaries, who at the discretion of the trustee would be assigned timeshares for which they had to agree to pay ongoing expenses and to assume the obligation to pay the encumbrance or lien against the timeshare.

•    Canadian residents could apply to become beneficiaries of the trust if they demonstrated past charitable giving and a desire to assist amateur athletics in Canada. The trustee had the discretion to allocate timeshares to the beneficiaries who then would be in a position to donate them.

•    A capital property beneficiary with a timeshare could, but was not obliged to, donate it to a Canadian amateur athletic association along with sufficient cash to have the timeshare conveyed free and clear of encumbrances.

•    In return for a donation, the athletic association would issue two donation tax receipts.

•    One tax receipt was for the donor’s cash contribution to discharge the encumbrance, which ranged from $4,600 to $9,700 per timeshare.

•    The other tax receipt was for the then fair market value of the donated timeshare less the amount of the encumbrance. The second receipt ranged from between $8,765 and $18,900.

•    Thus, the two charitable donation receipts issued to donor participants in the Timeshare Program ranged from between $13,275 to $28,000 per timeshare.

•    It should be noted that from an economic perspective, under these arrangements and assuming that tax receipts were operative, a donor would earn an approximately 35% return on his or her cash contribution to the athletic association, since it was the settlor of the trust who had paid for the timeshare settled on the Athletic Trust of Canada that was being conveyed to the athletic association. 

•    Canadian Athletic Advisors Ltd. was retained to sell or to re-sell the timeshares that were being donated to the athletic associations. Canadian Athletic Advisors received a 5% commission of the revenue from the sale of the timeshares, net of expenses.

•    The athletic associations that received donations agreed to pool their donated timeshares into a common marketing pool to facilitate the re-sales by Canadian Athletic Advisors. 

•    The athletic associations agreed that if the resort developers repurchased 100 or more timeshares, the associations would sell a one bedroom timeshare for $1,000 (USD) and a two bedroom timeshare for $1,100 ($USD).

•    It may be noted that under these arrangements, although the athletic association would have issued tax receipts for between $13,275 and $28,600 per timeshare, its own financial resources would ultimately have increased only by around a $1,300.

•    The promotional materials for the Timeshare Program promised attractive income tax benefits. The marketing package included a Beneficiary Guide and a FAQ (frequently asked questions) sheet.

•    Potential participants in the Timeshare Program could and did contact the promoters of the Timeshare Program, and many of the potential participants could and did obtain independent financial and legal advice from lawyers and accountants.

•    The promotional material referred to the fact that Canadian Athletic Advisors had retained Cassels Brock to provide legal opinions with respect to the tax consequences of the Timeshare Program.

•    The sales force was provided with the promotional material and with a due diligence information package. The sales force was provided with the legal opinions obtained from Cassel Brocks.

2.    The Cassels Brock Legal Opinions  
[19]        In 2000, Messrs. Elliot and Mintz retained Cassels Brock to provide Canadian Athletic Advisors with a legal opinion about the tax consequences under the Income Tax Act of participating in the Timeshare Program.

[20]        Cassels Brock is a full service law firm carrying on business in Toronto as a limited liability partnership. Lorne Saltman, a tax lawyer and a partner of the firm, prepared the opinion for Canadian Athletic Advisors.

[21]        In the following years, Cassels Brock prepared more legal opinions for Canadian Athletic Advisors about the Timeshare Program. There are six opinions. The opinions are substantially the same.

[22]        Using the October 8, 2003 opinion as an example, it is a 26-page, single-spaced, legal opinion divided into nine parts after an introduction. The parts are: (1) Facts; (2) Relevant Provisions of the Tax Act; (3) Meaning of “Gift”; (4) Transfer of Timeshare Weeks to Class A Beneficiaries; (5) Capital Gains; (6) Valuation; (7) General Anti-Avoidance Rule (“GAAR”); (8) Tax Shelter Identification Number; and (9) General Comments.

[23]        For present purposes, the following excerpts from the Cassels Brock opinions are pertinent, with emphasis added.

Re: Donation of One-Bedroom and Two-Bedroom, Biennial Timeshare Vacation Weeks

You have requested our opinion regarding the Canadian Federal Income Tax consequences relating to a donation of a 75-year leasehold Biennial Timeshare Resort Weeks at the Alexandra Resort and Spa in Provideniales, Turks and Caicos Islands, British West Indies (the “Timeshare Weeks”) by individual Canadian resident taxpayers. It is contemplated that any such donation would entitle the donor to claim a tax credit under the Income Tax Act (Canada) (the “Tax Act”).

Our comments are based on the facts and assumptions expressed below. This opinion is specifically directed to potential donors who are individuals and who acquire and hold the Timeshare Weeks as capital property. The Timeshare Weeks will generally be considered to be held as capital property, unless the taxpayer is a trader or dealer in timeshare weeks, has acquired the Timeshare Weeks as an adventure in the nature of trade, or does not otherwise hold the Timeshare Weeks for investment purposes. ….

3. Meaning of “Gift”

In order to claim a tax credit for a donation there must be a complete gift of the property. Each of several elements must be found in order for a donation to qualify as a gift for income tax purposes. These elements are summarized by the CCRA in its Interpretation Bulletin IT-110R3 entitled, “Gifts and Official Donation Receipts” ….

If a Class A Beneficiary chooses to retain the Timeshare Weeks, he or she may do so and hold, exchange, or sell the Timeshare Weeks, as well as to utilize them for his or her own vacations, or for any other lawful and permitted purposes. If all or substantially all of the Class A Beneficiaries who receive Timeshare Weeks donate them, the CCRA may be more inclined to challenge the arrangement (but see our opinion below at page 23 as to the unlikely success of such a challenge.) ….

7. General Anti-Avoidance Rule (“GAAR”)

Although the current version of GAAR has been in place since 1988, there has to date been little jurisprudence of direct relevance to charitable donations. GAAR is intended to apply to situations where a transaction or series of transactions results in a tax benefit, unless the transaction may reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefit, or unless the transaction does not result in a misuse of the provisions of the Tax Act or an abuse having regard to the provisions of the Tax Act as a whole. ….

Accordingly, we are of the opinion that a good argument can be made that it cannot reasonably be said that there is an abuse of the provisions of the Tax Act as a whole in these circumstances. In our opinion, and based on the foregoing, a donation of Timeshare Weeks in these circumstances would not likely be successfully attacked under GAAR. ….

9. General Comments

This opinion is based on the current provisions of the Tax Act, the regulations thereunder, and our understanding of the current administrative practices of the CCRA. …. No advance tax ruling has been sought or obtained from the CCRA to confirm the tax consequences or any of the transactions described herein.

This opinion may be relied upon only by CAA and potential donors, their agents and professional advisors, for the purpose of the transactions contemplated by this opinion. It may not be relied upon by any other person or for any other purpose, nor may it be quoted in whole or in part or its existence or contents otherwise referred to, without our prior written consent.

Based on and subject to the foregoing review, in our opinion it is unlikely that the CCRA could successfully deny the deemed adjusted cost base of the Timeshare Weeks to, nor the tax credit claimed by, the Class A Beneficiaries who receive a distribution of the Timeshare Weeks from the Trust, and subsequently choose to make a voluntary and complete donation of some or all of their Timeshare Weeks to an RCAA.

This opinion is based upon our understanding of the facts and circumstances surrounding the proposed arrangements. If these facts or circumstances turn out to be different from what we have understood, our opinion may be different, in which event this letter should not be relied upon. 

[24]        In Mr. Lipson’s action, a core allegation against Cassels Brock is that it failed to consider whether Canada Revenue would consider the conveyance of timeshares a gift in accordance with the Income Tax Act jurisprudence.

[25]        It was Professor Krisna’s opinion that the Cassels Brock opinions did not address the circumstance that if a tax credit was available for the donation of a timeshare, the credit would yield a financial return to the donor that exceeded his or her cash outlays in making the donation. His opinion was that Cassels Brock failed to address the implications of the financial advantages of making a donation of timeshares in circumstances where the purported donor was gaining (being enriched) and not losing (being impoverished) by his or her donation. This circumstance ran the risk that Canada Revenue would deny that the donation was actually a gift or intended to be a gift; i.e. Canada Revenue could submit that the donor did not actually make a gift or did not have the necessary donative intent of gift giving.

[26]        It was also Professor Krisna’s opinion that Cassels Brock’s opinion did not meet the standard of care expected of a tax lawyer.

3.    Other Legal Opinions
[27]        In December 2002, the law firm Aikins, McCauley & Thorvaldson provided a tax opinion to Canadian Athletic Advisors about whether the opinions set out in the Cassels Brock opinion for the Canada Income Tax Act were applicable to the Manitoba Tax Act. The firm provided the perfunctory legal opinion that:

Although we have not independently verified the strength of the arguments raised or the conclusions reached in the Cassels Brock Opinion, given the similarities between the Federal Tax Act and the Manitoba Tax Act, we know of no reason why similar arguments could not be raised and similar conclusions could not be reached, with the necessary contextual changes, with respect to the Manitoba Tax Act.

[28]        As noted above, one of the entities marketing the Timeshare Program was Venturedge, which was a corporation established by Mr. Prenick and Mr. Langer, the principals of the third party Prenick and Langer LLP.

[29]        On behalf of Venturedge, Mr. Prenick retained the late Ronald J. Farano, Q.C., a tax partner at the law firm Gardiner Roberts LLP to provide a second opinion about the Timeshare Program. The opinion written by Mr. Farano stated:

Based upon my understanding of the law as it exists as of this date the [Cassels Brock] Opinion properly reflects the legal situation in an income tax context.

[30]        It is a contested point about whether Mr. Prenick may have provided Mr. Farano’s opinion to prospective participants in the Timeshare Program.

4.    Mr. Lipson’s Participation in the Timeshare Program
[31]        In the fall of 2000, Morris Langer of Prenick Langer LLP, who was Mr. Lipson’s accountant, told Mr. Lipson about the Timeshare Program.

[32]        Jeffrey Lipson is a wealthy retired businessman living in Toronto, Ontario. Before his retirement, he oversaw his family’s retail business and he was a real estate investor.

[33]        Mr. Lipson says that he did not understand the intricacies of the Timeshare Program, and he asked Mr. Langer whether there was a legal opinion to support the tax benefits. Mr. Langer advised him that Cassels Brock had issued a supporting legal opinion. This satisfied Mr. Lipson, who says that he had a high aversion to financial risk, and he decided to participate in the program. Mr. Lipson says that he would not have participated in the Timeshare Program if there had not been a favourable tax opinion from a reputable law firm.

[34]        Mr. Lipson, however, did not read the Cassels Brock opinion, and he has no recollection of ever reading it even to this date.

[35]        In 2000 and in the following years, Mr. Lipson went ahead and participated in the program. After his 2000 donation, he did not put his mind to the Cassels Brock opinion before making more donations.

[36]        For 2000, he claimed tax credits of $634,352. For 2001, he claimed credits of $1,261,988. For 2002, he claimed credits of $2,085,835. For 2003, he claimed credits of $1,148,879.60.

5.    The Denial of the Tax Credits and Proceedings Against Canada Revenue
[37]        In October and November 2004, in terse letters to the participants in the Timeshare Program, Canada Revenue disallowed the charitable donation receipts as a basis for tax credits. As an explanation for denying the charitable donations: (1) Canada Revenue denied that the Athletic Trust was a validly constituted trust and, therefore, Canada Revenue’s position was that there had been no valid transfer of timeshares; (2) Canada Revenue denied that the donors had acquired legal title to timeshares and denied that the donors had transferred timeshares to the athletic associations; (3) Canada Revenue denied that the Athletic Trust was a not charitable trust; (4) Canada Revenue denied that the donation of the timeshares was a true gift and was not giving willingly without conditions or without restrictions on the charity; (5) Canada Revenue contented that the reported fair market value was significantly overstated.

[38]        With the receipt of the correspondence from Canada Revenue, Mr. Lipson immediately realized that there was a problem, and he sought legal and accounting advice at some expense. During his cross-examination, he stated that he realized that the tax treatment allegedly ensured by Cassel Brock’s opinion “was not going to happen.”

[39]        In April 2004, Mr. Lipson and many other participants retained Thornsteinssons LLP to represent them in dealing with Canada Revenue with respect to the Timeshare Program.

[40]        In January 2006, several of Thornsteinssons’ clients brought test cases to challenge the disallowances of the tax receipts.

[41]        Also in 2006, Mr. Lipson filed notice of objection to his reassessments. He claimed that he was entitled to the full amount of the tax credits. These notices were held in abeyance pending the determination of the test cases. 

[42]        In 2008, CCRA settled the test cases, and it offered to settle with all of the donors. Mr. Lipson settled with CCRA at that time.

[43]        In the settlement, Canada Revenue agreed that the cash paid by the donors to discharge the encumbrances against the timeshares constituted a charitable donation entitled to a tax credit. Canada Revenue, however, denied any charitable donation for the alleged fair market value of the donated timeshare.

[44]        Mr. Lipson submits that the settlement with Canada Revenue crystallized his damages and the damages suffered by the other participants in the Timeshare Program caused by the negligence of Cassels Brock. He further submits that but for the Cassels Brock opinions there would not have been a Timeshare Program. He submits that with the settlement, he discovered that he had suffered damages and that he had a claim against Cassels Brock for negligence and negligent misrepresentation.

[45]        Mr. Lipson submits that his heads of damages are: (a) special damages associated with the litigation with Canada Revenue; (b) the expense of interest arrears on his unpaid taxes; and (c) lost financial opportunities. The claims of the proposed Class Members are similar. 

6.    The Class Action
[46]        After the settlement with Canada Revenue, on April 15, 2009, Mr. Lipson commenced a proposed class action.

[47]        It should be noted that Mr. Lipson’s action was commenced almost four and a half years from the first letters from Canada Revenue disallowing the tax credits and two and a half years after retaining a law firm to take proceedings against Canada Revenue.

[48]        Mr. Lipson claims damages in the amount of $55 million for professional negligence and negligent misrepresentation. He also claims special damages for accounting, legal and other professional fees and expenses.

[49]        In his Statement of Claim against Cassels Brock, Mr. Lipson advances a claim of solicitor’s negligence based on the allegation that the law firm provided advice negligently.

[50]        Mr. Lipson pleads that Cassels Brock breached a duty to Class Members to exercise the care and skill of a reasonably competent tax solicitor by:

(a) concluding that it was reasonably unlikely that the Canada Revenue could successfully deny the tax credits claimed by the Class Members in connection with the Timeshare Program;

(b) failing to consider or explain that Canada Revenue might deny all of the tax credits claimed by the Class Members in connection with the Timeshare Program on the grounds that they lacked the required donative intent to make a gift to the athletic associations because they had entered into a series of predetermined transactions merely to obtain a tax benefit; and

(c) permitting Cassels Brock’s name and reputation to be used by the Athletic Trust in promoting and legitimizing the Timeshare Program in circumstances where Cassels Brock failed to exercise the requisite reasonable care and skill in assessing the income tax consequences relating to donations under the Timeshare Program.

[51]        Mr. Lipson pleads that but for Cassels Brock’s negligence, the promoters of the Timeshare Program would not have created and made the Timeshare Program available to the public, and could not have successfully promoted the Timeshare Program. He pleads that Cassels Brock knew or should have known that without a favourable tax opinion, the Timeshares Program would not have been or could not have been made publicly available or successfully promoted. He pleads that Cassels Brock knew or ought to have known that potential donors, including Lipson and the other Class Members, would rely upon the Legal Opinions, including the existence and favourable nature of the Legal Opinions, in deciding whether to participate in the Timeshare Program in each Taxation Year.  He pleads that but for Cassels Brock’s involvement, no Class Member would have participated in the Timeshare Program and none would have suffered a loss.

[52]        He pleads that the opinions were prepared by Cassels Brock knowing that a favourable tax opinion was a necessary precondition to the creation and successful promotion of the Timeshare Program and that the Class Members (including Lipson) would rely on the existence of a favourable tax opinion in deciding whether to participate in the Timeshare Program. He pleads that in reliance on the legal opinions and its express and implied representations, the Class Members decided to participate in the Timeshare Program on the understanding they could both support amateur athletics and reduce their tax liability. 

[53]        Mr. Lipson proposes the following class definition, which he estimates will identify approximately 900 Class Members:

All individuals who applied and were accepted to be beneficiaries of the Athletic Trust in 2000, 2001, 2002 and/or 2003 and received Timeshare Weeks from the Athletic Trust and donated them, together with a cash donation, to one or more of the RCAAAs (the “Class Members” or the “Class”).

[54]        Mr. Lipson proposes the following common issues:

Negligence

(1)  Did the Defendant owe the Class a duty of care (in, among other things, negligence or negligent misrepresentation) in the preparation of the Legal Opinions?

(2)  If the answer to common issue 1 is “yes”, what is the content of the standard(s) of care?

(3) Did the Defendant breach the foregoing standard(s) of care?  If so, how? 

(4)  If the answer to common issue 3 is “yes”, did the Defendant’s breach of the foregoing standard(s) of care cause or materially contribute to the damages of the Class Members?

Damages or Other Relief

(5)  If the answer to common issue 4 is “yes”, what types or heads of damages, if any, are the class members entitled to?

(6) If the answer to common issue 4 is “yes” what remedy or remedies, if any, are the Class Members entitled to? 

(7)  If the Class Member is entitled to a damages award, can some or all of that award be determined commonly? If so, what is the quantum and how?

[55]        On April 15, 2011, Cassels Brock issued a third party claim against: Mintz & Partners LLP; Deloitte and Touche LLP; Glenn F. Ploughman; Shelley Shifman; Prenick Langer LLP; TMK Financial Group Ltd.; Gardiner Roberts LLP; the Estate of Ronald J. Ferano, deceased; John Doe 1-100; John Doe Inc. 1-100; John Doe Partnership 1-100; and John Doe LLP 1-100. It is alleged that these third parties promoted or marketed the Timeshare Program.

[56]        Mintz & Partners LLP, Gardiner Roberts LLP, and the Estate of Ronald J. Farano, deceased have defended the main action.

[57]        Mintz & Partners LLP, Deloitte & Touche LLP, Prenick Langer LLP, Gardiner Roberts LLP, and the Estate of Ronald J. Farano, deceased, have defended the Third Party Claim.

[58]        On July 27, 2011, I granted the third parties leave to participate on the certification motion, and Gardiner Roberts and the Farano Estate did participate and they opposed certification.

[59]        Cassels Brock submits that several of the criteria for certification have not been satisfied. In any event, Cassels Brock and Gardiner Roberts LLP and the Farano Estate submit that the proposed class action is statute-barred. 

D.          THE CRITERIA FOR CERTIFICATION AS A CLASS ACTION
1.    Introduction
[60]        Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims of the class members raise common issues of fact or law; (d) a class proceeding would be the preferable procedure; and (e) there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan.

[61]        For an action to be certified as a class proceeding, there must be a cause of action, shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers: Sauer v. Canada (Attorney General), [2008] O.J. No. 3419 (S.C.J.) at para. 14, leave to appeal to Div. Ct. refused, [2009] O.J. No. 402 (Div. Ct.).

[62]        On a certification motion, the question is not whether the plaintiff’s claims are likely to succeed on the merits but whether the claims can appropriately be prosecuted as a class proceeding: Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158 at para. 16.

[63]        The test for certification is to be applied in a purposive and generous manner, to give effect to the important goals of class actions—providing access to justice for litigants; promoting the efficient use of judicial resources; and sanctioning wrongdoers to encourage behaviour modification: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 (CanLII), [2001] 2 S.C.R. 534 at paras. 26-29; Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158 at paras. 15 and 16.

[64]        The purpose of a certification motion is to determine how the litigation is to proceed and not to address the merits of the plaintiff’s claim; there is to be no preliminary review of the merits of the claim: Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158 at paras. 28-29.

[65]        In the case at bar, Cassels Brock did not dispute that Mr. Lipson’s Statement of Claim disclosed a cause of action in negligent misrepresentation, and it accepted that there was a satisfactory class definition and an adequate litigation plan if the action was certified as a class action.

[66]        However, Cassels Brock challenged Mr. Lipson’s pleading in negligence. The law firm also challenged the commonality of the proposed common issues, and it disputed that a class action was the preferable procedure. It challenged Mr. Lipson as a suitable representative plaintiff.

[67]        In any event, as noted above, Cassels Brock, Gardiner Roberts, and the Farano Estate submitted that the class action should be dismissed as statute-barred, which is a matter that I will discuss after analyzing whether the action otherwise satisfies the criteria for certification as a class action.

2.    Disclosure of Cause of Action
[68]        The first criterion is whether the plaintiff’s pleading discloses a cause of action. The “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5 (1)(a) of the Class Proceedings Act, 1992. Thus, to satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect or it is plain and obvious that it could not succeed: Anderson v. Wilson 1999 CanLII 3753 (ON CA), (1999), 44 O.R. (3rd) 673 (C.A.) at p. 679, leave to appeal to S.C.C. ref’d, [1999] S.C.C.A. No. 476; 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. 2002 CanLII 6199 (ON SC), (2002), 62 O.R. (3d) 535 (S.C.J.) at para. 19, leave to appeal granted, 64 O.R. (3d) 42 (S.C.J.), aff’d 2004 CanLII 16620 (ON SCDC), (2004), 70 O.R. (3d) 182 (Div. Ct.).

[69]        In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed: Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158 at para. 25; Cloud v. Canada (Attorney General) v. Canada (Attorney General) 2004 CanLII 45444 (ON CA), (2004), 73 O.R. (3d) 401 (C.A.) at para. 41, leave to appeal to the S.C.C. ref’d, [2005] S.C.C.A. No. 50 , rev’g reflex, (2003), 65 O.R. (3d) 492 (Div. Ct.); Abdool v. Anaheim Management Ltd., 1995 CanLII 5597 (ON SCDC), (1995), 21 O.R. (3d) 453 (Div. Ct.) at p. 469.

[70]        Cassels Brock concedes that Mr. Lipson has disclosed a cause of action for negligent misrepresentation, the constituent elements of which are: (1) a duty of care relationship; (2) a misrepresentation by the defendant; (3) the defendant having been negligent in making the misrepresentation; (4) the plaintiff having reasonably relied on the misrepresentation; and (5) the plaintiff having suffered damages as a consequence of relying on the misrepresentation. See Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87. 

[71]        However, Cassels Brock challenges Mr. Lipson’s negligence claim as not showing a reasonable cause of action or as a disguised and defective negligent misrepresentation action that attempts to circumvent the constituent elements of reasonable reliance and causation of damages.

[72]        Cassels Brock states that there was no lawyer and client relationship between it and the Class Members, and Cassels Brock submits that the Class Members claims are for pure economic losses for which the only available tort claim would be the tort of negligent misrepresentation. is As I understand it, the point of this argument is that if Mr. Lipson’s action is to proceed as a class action, it can proceed only as a negligent misrepresentation claim, in which case each of the class members must prove reasonable reliance.

[73]        Cassels Brock’s arguments are similar to those made by the defendants in Robinson v. Rochester Financial Ltd., [2010] O.J. No. 187 (S.C.J.), leave to appeal ref’d 2010 ONSC 1899 (CanLII), 2010 ONSC 1899 (Div. Ct.) , which was a class action that was certified by Justice Lax, who allowed a general negligence claim to proceed. Cassels Brock submits that Robinson is distinguishable or wrongly decided.

[74]        In Robinson, the defendants were the promoters of a donation program in which the participants anticipating receiving tax credits under the Income Tax Act. The law firm Fraser Milner Casgrain LLP had prepared tax opinions for the promoters supporting the availability of tax credits. Canada Revenue, however, denied the tax credits, and the participants sued the promoters for breach of contract and for negligence. The participants sued Fraser Milner Casgrain for negligence.

[75]        The participants alleged that the law firm’s legal opinions were a necessary precondition to the marketing of the donation program and that they had relied on the existence of the opinions as a factor in deciding whether to participate in the program. The participants alleged that Fraser Milner Casgrain was liable for negligence in preparing the opinions. The participants alleged that the opinions prepared for the promoters were prepared to be relied on by the promoters as fundamentally necessary to promote the donation program.

[76]        On the certification motion, Fraser Milner Casgrain moved to have the action against it dismissed. It argued that in the pleaded circumstances it could not have a duty of care and there could not be a negligence claim based on an allegedly negligent opinion that was never read or relied upon by the participants and that had been prepared just for the promoters.

[77]        Justice Lax disagreed with Fraser Milner Casgrain’s argument that the participants’ claim was a disguised and deficient negligent misrepresentation claim; rather, she viewed it as a discrete negligence claim pleading duty of care, standard of care, breach of the standard of care, causation, and damages.  Justice Lax concluded that it was at least arguable that Fraser Milner Casgrain ought to have foreseen that its tax opinion would be used to market the program and that the participants would suffer damages if the opinion was negligently prepared. It was arguable that the law firm had a duty of care to the participants in the donation program. In paragraph 31 of her judgment, Justice Lax stated:

In my view, FMC placed itself in a relationship of sufficient proximity to owe a prima facie duty of care to the plaintiffs and proposed class members and I would leave to trial the question of whether policy considerations ought to negative that duty.

[78]        I take Justice Lax to be saying that it was not plain and obvious that the participants did not have a claim in negligence against the law firm. She appreciated that the negligence claim was a novel cause of action given that the participants were not the clients of the firm and that the opinion had been prepared only for the promoter clients. Justice Lax appreciated that the participants’ claim against the law firm might not succeed and that it was still open for Fraser Milner Casgrain to argue that it had no duty of care to the participants of the program. These matters, however, were for trial and did not stand against the certification of the action as a class action.

[79]        I agree with Justice Lax’s analysis. The Robinson case is not distinguishable from the case at bar, and, indeed, the case at bar is a stronger case for her analysis, which posits that it is arguable that the law firm had a duty of care and that the other constituent elements of negligence claim might be established; i.e. it is not plain and obvious that Mr. Lipson and the Class Member’s do not have a free-standing claim for negligence that is discrete from a claim for negligent misrepresentation. See also: Yorkshire Trust Co. v. Empire Acceptance Corp. Ltd. [1986] B.C.J. No. 3254 (B.C.S.C.); Collette v. Great Pacific Management Co., [2004] B.C.J. No. 381 (B.C.C.A.); McCann v. C.P. Ships, [2009] O.J. No. 5182 (S.C.J.); Dobbie v. Arctic Glacier Income Fund, 2011 ONSC 25 (CanLII), 2011 ONSC 25.

[80]        On the duty of care point of a negligence analysis, the case at bar is stronger than in the Robinson case because Cassels Brock wrote its opinions so that they might be relied on “by potential donors, their agents and professional advisors for the purpose of the transactions contemplated by this opinion” while in Robinson the opinion was for the promoters although it was foreseeable that they would use to market the donation program to potential donors.

[81]        I conclude that Mr. Lipson has satisfied the cause of action criterion for the certification of his action as a class action.

[82]        I will discuss below whether his negligent misrepresentation action and his negligence action generate common issues suitable to be certified for a class action and whether a class action would be the preferable procedure for the determination of Mr. Lipson and the Class Members’ claims.     

3.    Identifiable Class  
[83]        As already noted above, there is no challenge to the proposed class definition.

[84]        I find that the proposed definition satisfies the identifiable class criterion of the test for certification as a class action. 

4.    Common Issues
[85]        For an issue to be a common issue, it must be a substantial ingredient of each class member’s claim and its resolution must be necessary to the resolution of each class member’s claim: Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158 at para. 18.

[86]        The focus of the analysis of whether there is a common issue is not on how many individual issues there might be but whether there are issues the resolution of which would be necessary to resolve each class member’s claim and which could be said to be a substantial ingredient of those claims: Cloud v. Canada (Attorney General) 2004 CanLII 45444 (ON CA), (2004), 73 O.R. (3d) 401 (C.A.) at para. 55, leave to appeal to the S.C.C. ref’d, [2005] S.C.C.A. No. 50, rev’g, reflex, (2003), 65 O.R. (3d) 492 (Div. Ct.).

[87]        The fundamental aspect of a common issue is that the resolution of the common issue will avoid duplication of fact-finding or legal analysis: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 (CanLII), [2001] 2 S.C.R. 534 at para. 39.

[88]        For an issue to be common, it is not essential that the class members be identically situated vis-à-vis the opposing party or benefit from the successful prosecution of the action to the same extent: Western Canadian Shopping Centres v. Dutton, 2001 SCC 46 (CanLII), [2001] 2 S.C.R. 534 at paras. 39-40.

[89]        The comparative extent of individual issues is not a consideration in the commonality inquiry, although it is a factor in the preferability assessment: Cloud v. Canada (Attorney General) 2004 CanLII 45444 (ON CA), (2004), 73 O.R. (3d) 401 (C.A.) at para. 65, leave to appeal to the S.C.C. ref’d, [2005] S.C.C.A. No. 50, rev’g, reflex, (2003), 65 O.R. (3d) 492 (Div. Ct.); Rumley v. British Columbia (sub. Nom. L.R. v. British Columbia), [2001] 2 S.C.R. 184 at para. 33.

[90]        An issue is not a common issue if its resolution is dependent upon individual findings of fact that would have to be made for each class member: Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 (Div. Ct.) at paras. 3, 6.

[91]        Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries: Nadolny v. Peel (Region), [2009] O.J. No. 4006 (S.C.J.) at paras. 50-52; Collette v. Great Pacific Management Co., [2003] B.C.J. No. 529 (B.C.S.C.) at para. 51, var’d on other grounds 2004 BCCA 110 (CanLII), (2004) 42 B.L.R. (3d) 161 (B.C.C.A.); McKenna v. Gammon Gold Inc., [2010] O.J. No. 1057 (S.C.J.) at para. 126, leave to appeal granted [2010] O.J. No. 3183 (Div. Ct.), var’d 2011 ONSC 3882 (Div. Ct.).

[92]        While only a minimum evidentiary basis is required, there must be some evidence to show that this issue exists and that the common issues trial judge is capable of assessing it in common; otherwise, the task for the common issues trial judge would not be to determine a common issue, but rather to identify one: Fresco v. Canadian Imperial Bank of Commerce, [2009] O.J. No. 2531 (S.C.J.) at para. 61, aff’d 2010 ONSC 4724 (CanLII), 2010 ONSC 4724.

[93]        Cassels Brock submits that Mr. Lipson’s proposed common issues, which are set out earlier in these Reasons for Decision, want for commonality and are unfair. It submits that the certification of the list of proposed common issues would deny it the right and the ability to defend itself from the Class Members’ claims. Thus, it states in paragraph 126 of its factum:

126. These proposed common issues raise significant individual issues. Grouping them together as common issues would severely limit Cassels Brock’s ability to defend itself.  It would unable to raise, for instance, the individual circumstances of a plaintiff’s actual knowledge of (including whether they read) the Opinion Letters, representations made by any third party agents or advisors (many of whom are third parties in the action), what reliance a plaintiff placed on the Opinion Letters, the results of any additional due diligence performed by the participant or their agents or advisors (such as the Farano Opinion), and the actual loss suffered by any individual plaintiff.  All of these issues are raised squarely on the face of the pleading and the common issues as proposed.

[94]        Cassels Brock argues that reliance and causation are inherently idiosyncratic and individual issues that make Mr. Lipson’s action unsuitable for a class action and that Mr. Lipson has unfairly designed the common issues to relieve the Class Members of the requirement of proving reliance and causation as elements of their claims of negligent misrepresentation and negligence respectively.

[95]        Notwithstanding Cassels Brock’s arguments, in my opinion, questions 1, 2, and 3 of the list of proposed questions are suitable for certification as common issues. These issues have sufficient commonality and are not unfair to Cassels Brock. 

[96]        Further, questions 5 and 6 would be suitable for certification if they were revised to state:

(5) If after an individual issues trial, the defendant were found liable to a Class Member for negligent misrepresentation or negligence, what types or heads of damages, if any, would the Class Members be entitled to?

(6) If after an individual issues trial, the defendant were found liable to a Class Member for negligent misrepresentation or negligence what remedy or remedies, if any, would the Class Members be entitled to? 

[97]        However, in my opinion, questions 4 and 7are problematic, and these questions should not be certified for the class action.

[98]        Question 4 is:

(4) If the answer to common issue 3 is “yes”, did the Defendant’s breach of the foregoing standard(s) of care cause or materially contribute to the damages of the Class Members?

[99]        Question 4 either assumes that causation is a common issue or it makes determining whether causation is a common issue a common issue, which is not permissible. The commonality of an issue must have some basis in fact and cannot be simply assumed, and a common issue cannot be the determination of whether the purported common issue has commonality.

[100]    In my opinion, the commonality factors relied on by Mr. Lipson establishes some basis in fact that Cassels Brock’s role was sufficient to cause individual Class Members, like Mr. Lipson, to incur a loss, but these factors are not sufficient to show some basis in fact that Cassels Brock’s role was the necessary cause of all of the Class Members suffering a loss.

[101]    It seems to me that for Mr. Lipson’s “but for causation argument” to work on a class-wide basis, there would have to be some basis in fact that Cassels Brock had the monopoly on the legal opinions that were the posited as a sine qua non for the Timeshare Program, but the evidence and common sense is to the contrary. The Timeshare Program was in fact supported by other opinions.   

[102]    By way of illustration and comparison and contrast, the commonality of question 1, whether Cassels Brock owed the class a duty of care, has some basis in fact because Cassels Brock wrote its opinions so that they might be relied on “by potential donors, their agents and professional advisors for the purpose of the transactions contemplated by this opinion.” The legal opinions were communicated or made available to the whole class.

[103]    In contrast, the submission that but for the Cassels Brock opinion, the Class Members would not have suffered damages because there would not have been a Timeshare Program does not show some basis in fact for the commonality of causation because: (a) in so far as the negligent misrepresentation claim is concerned, the Class Members would still have to establish that they reasonably relied on Cassels Brock’s opinion, which is an inherently individualistic inquiry; and (b) insofar as the negligent misrepresentation and negligence claims are concerned it should not be assumed and it does not necessarily follow that if Cassels Brock had a duty of care and breached the standard of care, it necessarily caused damages to all class members, including those who did not read or perhaps did not even put their mind to the existence of a tax opinion or who actually relied on the advice of persons who expressed their own independent opinion about the availability of tax receipts to participants in the Timeshare Program.

[104]    In Yorkshire Trust Co. v. Empire Acceptance Corp. Ltd., supra at para. 15. Justice McLachlin, as she then was, pointed out that reliance was considered an essential element of a cause of action for negligent misrepresentation for two reasons; namely, (1) it confines the class of persons who may sue; and (2) it constitutes the causal link between the misrepresentation and the loss; it is because the plaintiff relied on the statement that he or she suffered a loss.

[105]    Later, in her judgment at para. 18, Justice McLachlin notes that in cases where a causal link independent of reliance can be found, courts have been prepared to find a cause of action despite the absence of reliance. Earlier, in this judgment, I accepted that it was not plain and obvious that the Class Members did not have a reasonable cause of action in negligence, in which case the Class Members would not have to prove reasonable reliance, which is not a constituent element of a general negligence claim. (Proof of reasonable reliance would remain a constituent element in the Class Members’ negligent misrepresentation claim).  However, it does not follow from the absence of the requirement to show reliance in a general negligence claim that causation is to be assumed or that causation is no longer a constituent element of the general negligence claim.

[106]    While it may be provable for some Class Members, particularly those that put their minds to what the tax opinions actually stated, that Cassels Brock’s alleged negligence caused them to participate in the Timeshare Program with attendant losses, and while it may be provable for some more Class Members, who were ignorant of Cassels Brock’s opinions, that they have Cassels Brock to blame for their being a Timeshare Program, it does not follow that Cassels Brock should not be able to argue that there were some Class Members that have only themselves or others to blame for participating in the Timeshare Program.

[107]    Causation is an element of culpability for the torts of negligent misrepresentation and negligence, and this is a matter of fairness and justice. In Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333, Chief Justice McLachlin stated at para. 23: 

23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at para. 26 per Sopinka J.

[108]    In Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, Justice Sopinka also stated at para. 26 that “causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.”

[109]    Assuming that Cassels Brock opinion was the sine qua non or indispensable precondition to the Timeshare Program for all Class Members is unfair to the defendant Cassels Brock and ignores the evidence that there were other supportive legal opinions available and some of the marketers were accountants or professional advisors capable of evaluating the merits, or lack thereof, of the Cassels Brock opinions and of providing their own advice and opinions.

[110]    Moreover, it is at least arguable that the Timeshare Program would have gone forward regardless of Cassels Brock’s opinion for those who would have been satisfied with a tax credit for the cash portion of their donation to the Athletic Association or for those with a higher tolerance for risk than Mr. Lipson or for those aware of the weaknesses of the Cassels Brock opinion but still prepared to take their chances. Put shortly, in the circumstances of this case, reasonable reliance and causation are individual not common issues and Cassels Brock should be able to show that individual Class Members have not proven all of the constituent elements of their respective tort claims.

[111]    This conclusion means that assuming that Mr. Lipson was successful at a common issues trial of questions 1, 2, and 3, Class Members would have to establish on an individual basis that they actually reasonably relied on the Cassels Brock opinion in making their decision to participate in the Timeshare Program or that the existence of the Cassels Brock opinion was a causal factor in their decision to participate in the Timeshare Program.

[112]    With causation as an individual issue, the Class Members would not have to prove that the Cassels Brock opinion was the sine qua non of the Timeshare Program for all Class Members and Cassels Brock would have the burden of proving that its opinion was not a factor or a contributing factor in the particular Class Members’ decision to participate in the program. Treating reliance and causation as individual issues is fair to both parties.

[113]    As for question 7, it states:

(7) If the Class is entitled to a damages award, can some or all of that award be determined commonly? If so, what is the quantum and how?

[114]    There is no basis in fact and no theory advanced as to how the identified class - as a class - would be entitled to a damages award as a class. The class members would have individual claims for damages, which would depend on their individual tax situations. In this regard, I understand that there are limits to the availability of tax credits, and thus it is conceivable that there may have been other reasons for Canada Revenue to deny or limit the charitable tax credits in whole or in part from the Timeshare Program. In other words, the assessment of damages is an individual issue for each Class Member.

[115]    Based on the above analysis, I conclude that questions 1, 2, 3, 5 and 6 as revised are suitable common issues and that Mr. Lipson’s action satisfies the third criterion for certification as a class action.                 

5.    Preferable Procedure
[116]    For a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims: Cloud v. Canada (Attorney General) 2004 CanLII 45444 (ON CA), (2004), 73 O.R. (3d) 401 (C.A.) at paras. 73-75, leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 50.

[117]    Preferability captures the ideas of whether a class proceeding would be an appropriate method of advancing the claim and whether it would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute: Markson v. MBNA Canada Bank 2007 ONCA 334 (CanLII), (2007), 85 O.R. (3d) 321 (C.A.) at para. 69, leave to appeal to S.C.C. ref’d, [2007] S.C.C.A. N

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