Counsel for Case nonetheless suggested that the class identification in the Statement of Claim was deficient because, in Case’s opinion, the cracking, shredding and fraying of the tracks is essentially cosmetic and a plaintiff would need to prove some sort of loss to bring himself or herself within the class. In my view, this objection confuses the issue of whether the class is identifiable, within the meaning of s. 6(b), with the issue of whether any particular class member will ultimately be in a position to establish an entitlement to damages. This is significant because the Act does not require a class to be identified in such a way that every class member will, by definition, be entitled to damages if the common issues are resolved against the defendant. See: Western Canadian Shopping Centres v. Dutton, 2001 SCC 46,  2 S.C.R. 534 at para. 39.
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