Canada: The Second Opinion: Ontario Court Of Appeal Rejects "Conditional" Certification Of Class Actions

Last Updated: February 12 2013
Article by Brandon Kain

Most Read Contributor in Canada, September 2018

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP.

The Ontario Court of Appeal has released a new ruling which holds that motion judges do not have jurisdiction to “conditionally” certify class actions that fail to disclose a cause of action under s. 5(1)(a) of the Ontario Class Proceedings Act (“CPA“).

The decision in Brown v. Canada (A.G.), 2013 ONCA 18 concerns a proposed class action against the federal government, which alleges that it wrongfully delegated its duties in respect of Aboriginal persons by entering into an agreement (the “1965 Agreement”) that enabled the province of Ontario to place thousands of Aboriginal children in non-aboriginal foster care or adoptive homes.  The plaintiffs alleged that these children were deprived of their Aboriginal identity, and alleged liability based on honour of the Crown, “identity genocide”, breach of Aboriginal rights, breach of fiduciary duty and negligence.

At the certification motion, the motion judge found the pleadings failed to disclose a cause of action as required under s. 5(1)(a) of the CPA.  However, despite holding that the fiduciary duty and negligence claims did not support a cause of action based on the federal Crown’s entry into the 1965 Agreement – which was the claim pleaded by the plaintiffs – the motion judge went on to find that these claims could potentially support a cause of action based on the Crown’s failure to prevent the Aboriginal children from losing their Aboriginal identity.  Accordingly, upon finding that the proposed class action satisfied the remaining criteria under s. 5(1) of the CPA, the motion judge granted certification on the condition that the plaintiffs deliver an amended statement of claim.

The motion judge’s decision was set aside by the Ontario Divisional Court.  In a brief endorsement, it found that he predetermined that a cause of action would be disclosed if the pleadings were amended in accordance with his reasons, and erred by not adjourning the certification motion to await an amended statement of claim which could be challenged anew by the Crown.  Remarkably, the Court also ordered that the adjourned certification motion be heard by a different motion judge once an amended pleading was delivered, despite the fact that s. 34 of the CPA requires that “[t]he same judge shall hear all motions before the trial of the common issues” unless that judge “becomes unavailable for  any reason”.

In Brown, the Ontario Court of Appeal affirmed the Divisional Court’s order.  However, rather than doing so through an endorsement, the Court chose to deliver comprehensive reasons that emphasize the centrality of the s. 5(1)(a) requirement to the certification analysis.  According to Rosenberg J.A.:

…[I]dentification of a cause of action is fundamental.  It is impossible for the defendant to meaningfully respond to an application for certification without knowing the cause of action. The definition of the class and the identification of the common issues depend upon the nature of the cause of action. … It is not possible to know whether an action can be appropriately prosecuted as a class action without identifying the fundamental issue of whether or not there is a cause of action. It is no answer that the defendant can bring a motion to decertify the action under s. 10 if the action should never have been certified in the first place.

…[C]ertifying a class action in the absence of a statement of claim that discloses viable causes of action is not case management. Even the power to amend other aspects of the claim, such as the proposed common issues, should be exercised with caution and restraint: McCracken v. Canadian National Railway Co., 2012 ONCA 445, 111 O.R. (3d) 745, at para. 144. … The defendant cannot respond to the evidence-based criteria in the abstract without knowing the cause of action. [emphasis added] (paras. 44-45)

These comments reflect a growing trend towards a more rigorous review of certification motions by Ontario appellate courts.  The notion that it is appropriate to certify a class action that fails to satisfy one or more of the statutory criteria, on the basis that it may simply be “decertified” should problems arise down the road, no longer represents the prevailing approach, as is evident from other recent certification dismissals such as McCracken v. Canadian National Railway Company, 2012 ONCA 445 and Williams v. Canon Canada Inc., 2012 ONSC 3692 (Div. Ct.).  In the wake of lengthy common issues trials such as Andersen v. St. Jude Medical, Inc., 2012 ONSC 3660, Ontario courts have become sensitive to the impact that poorly conceived class actions can have upon defendants and the judicial system.  The result is a renewed emphasis upon the plaintiff’s statutory burden at certification.

Brown is also notable for the Court of Appeal’s decision to prevent the motion judge from presiding over the adjourned certification motion.  Rosenberg J.A. found the motion judge’s predetermination that an amended statement of claim would satisfy s. 5(1)(a) created a reasonable apprehension of bias, which rendered him “unavailable” to hear the motion pursuant to s. 34(2) of the CPA:

While it was not always the case, I think it can now safely be said that judges cannot sit in appeal of their own decisions: see e.g., Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767, at pp. 782-83, per Spence J., at p. 775, per Dickson C.J.C., dissenting.  In my view, a reasonable interpretation of the reasons of the case management judge is that he had determined that viable causes of action existed as he framed them. … [T]he causes of action as framed by the case management judge are so radically different from the way they were pleaded in the statement of claim that I do not think it can be safely said that the respondent had an adequate opportunity to respond. To now give the respondent that opportunity before the same judge would, as the Divisional Court found, result in the case management judge sitting in review of his own decision. (para. 53)

In light of Brown, motion judges should be wary of taking an overly interventionist approach on certification.

To view the original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions