The Devil is in the Scale: Revisiting the Commonality Requirement in Charter Class Actions

Abstract

Even a cursory look at the literature reveals scant agreement among experts on the future of Charter class actions. In no small part, this uncertainty can be attributed to the divergent views among the courts concerning the proper contours of the commonality threshold for aggregate Charter proceedings. While the doctrinal narrative of Thorburn suggests that Charter rights are individual in nature and, thus, are not easily amenable to collective redress, the counter-narrative delivered by Good posits that in order for a Charter class action to pass the commonality hurdle of certification “it does not have to resolve all issues that may exist in terms of establishing liability.” Although it is easy to see Thorburn and Good as thesis and antithesis, the subsequent Charter class actions such as Murray can hardly be portrayed as a synthesis. Hence, uncertainty over the commonality standard reigns. Taking these observations as its guiding thread, this article makes a case for revisiting the commonality requirement in Charter class actions and argues that “over-individualization” of Charter rights that has been imputed into the analysis by Thorburn is unjustified on both descriptive and normative levels. Descriptively, such “over-individualization” is misguided because it semantically overpowers the analysis which, if properly conducted, would often reveal either no need for individual fact-finding at all or the possibility to follow the resolution of common issues with individual mini-trials. Normatively, overreliance on individualized inquiries as part of the commonality analysis is misguided because it misconstrues the very nature of the class action regime.