Good v. Toronto Police Services Board, the Ontario
Divisional Court considered an appeal by the plaintiffs from the
denial of certification of a proposed class action on behalf of
protestors who had been detained at the G20 summit that was held in
Toronto in 2010.
In reaching his decision to allow the appeal and grant
certification, Nordheimer J., speaking for the court, noted the
unique nature of certification appeals in which plaintiffs are
permitted to reformulate their proceedings if they fail on the
first try. On appeal of a certification motion, plaintiffs
are given considerable leeway to amend, including the
opportunity to add defendants, amend common issues and alter the
The proposed class action, as
presented on this appeal, was markedly different from the proposed
class action that was considered by the motion judge. This is a
common feature of a great many class proceedings. Unlike almost any
other type of action, it has become almost routine for plaintiffs
in class actions to reformulate their proceeding if they are
unsuccessful in obtaining certification in the first instance.
Plaintiffs will add or remove defendants. They will add, delete or
otherwise amend common issues. They will alter class definitions.
They will amend and re-amend the statement of claim. This
"moving target" approach does not just occur once. It can
occur many times and at all of the different levels of the
appellate process, including at the Court of Appeal, if the goal of
certification continues to elude the representative plaintiff. In
fact, the common issues and the class definition are often amended
more than once at each level.
Nordheimer J. observed that, in the normal course, failure to
plead a material element of a party's claim would lead to
dismissal of the action. He described the "moving
target" approach of certification hearings as a peculiar
phenomenon that has been countenanced by the Ontario Court of
Appeal in Pearson v. Inco Ltd. (2005), 78 O.R. (3d)
The "moving target" approach has implications on the
standard of review. According to Nordheimer J., the normal standard
of review, that of a "palpable and overriding error of fact or
of mixed fact and law", is inappropriate where the
nature of the claim, and the foundation for it, has been rewritten
subsequent to the original decision. If a substantially amended
motion record is permissible on appeal, it is artificial to require
certification appeal judges to find a palpable and overriding error
in that context.
This departure from the well-established standard of appellate
review is a development worth watching.
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