Can a court refuse to certify a proceeding as a class proceeding solely on any of the following grounds?

Section 6 of the Act provides the court shall not refuse to certify a proceeding as a class proceeding solely on any of the following grounds: a) the relief claim includes a claim for damages which would require individual damage assessments; b) the relief claim relates to separate contracts involving different class members; c) different remedies are sought for different class members; d) the number identity of each class is not known; e) the class includes a sub-class as members have claims that rise common issues not shared by all class members. It is clear that s. 6 should be read to mean any one or more of the following grounds, and the presence of s. 6 factors must be considered but these factors are not determinative of the issue of certification, with each case turning on its own facts. All parties agree that s. 6 was not intended to limit the court’s discretion under s. 5. Section 6 was intended to ensure that the enumerated factors were not an absolute bar to certification and were not used by a court as justification for denying certification, as happened in the United States due to the requirement that the common issues “predominate” over individual issues. The proper approach is to weigh all the relevant factors including the common issues and individual issues in the context of the goals of the Act. Support for this proposition is found in Bywater v. Toronto Transit Commission (1999) 27 C.P.C. (4th) 172 at 180 to 182.