Canada: Court Of Appeal Confirms That A Flexible Approach To Class Certification‎ Serves The Greater Good

On April 6, 2016, the Ontario Court of Appeal released its decision in Good v. Toronto Police Services Board in respect of the certification of a proposed class proceeding on behalf of protestors and other individuals who had been detained at the G20 summit held in Toronto in June 2010. The proposed class action was commenced against the Toronto Police Services Board ("TPS") and three other defendants for alleged breaches of the detainees' Charter rights, among other claims.

The Court of Appeal's ruling not only provides valuable insight into the Court's flexible application of the class certification criteria – particularly with respect to the issues of commonality and preferable procedure – but also confirms the changing landscape that may be faced by defendants to putative class proceedings, even during the appellate process.

The Initial Proposed Class Action

During the demonstrations at the G20 summit in June 2010, many people were arrested or detained, and some were taken to a central Detention Centre specifically constructed for the event. The plaintiff was one of the individuals detained and commenced a proposed class action against TPS and three other defendants, asserting various claims, including breach of the putative class members' Charter rights, false imprisonment, assault and battery and abuse of public office. In addition, the proposed action alleged various human rights abuses and "inhumane conditions" in the Detention Centre.

At first instance, the plaintiff's proposed class action included eight subclasses, including individuals who were detained by police in various locations across the city, a "residual" class of individuals who were arrested at other locations, and individuals who were imprisoned at the Detention Centre. The Ontario Superior Court dismissed the plaintiff's motion for certification on the basis that the proposed issues lacked commonality, there was no identifiable class and a class action was not the preferable procedure.[1]

The Plaintiff's Reformulation of the Class Action

Prior to appealing to the Ontario Divisional Court, the plaintiff narrowed the proposed class to subclasses of individuals subject to "mass detention" at specified locations, abandoned certain causes of action, and withdrew the claims against all defendants except TPS.

The Divisional Court allowed the appeal and certified the narrowed claim as two separate class proceedings, finding that the motion judge erred in, among other things, concluding that it was impermissible to certify a proceeding with multiple location-based subclasses, where there was a single defendant and a single course of conduct alleged (i.e. a command order issued for all the detentions).[2]

The Court also noted that "a common feature of a great many class proceedings" is that "the proposed class action, as presented on appeal, was markedly different from the proposed class action that was considered by the motion judge." Justice Nordheimer described this as the "moving target" approach, which he said "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."

The Court of Appeal's Decision

TPS's subsequent appeal to the Ontario Court of Appeal was dismissed. Some of the key findings of the Court included:

  • The Divisional Court was justified in reversing certain determinations made by the motion judge because of the plaintiff's narrowed scope of the proposed class proceeding.
  • The combination of classes in a single proceeding is not prohibited if there exists "a central commonality linking the subclasses", which in this case was a single command allegedly issued for all the mass detentions and arrests.
  • It is open to the common issues judge to consider whether aggregate damages would be an appropriate remedy, in whole or in part, and whether punitive damages are appropriate (following Pro-Sys).
  • In considering whether a class proceeding was a "preferable procedure for the resolution of the common issues" (under s. 5(1)(d) of the CPA), the Court agreed with the Divisional Court that the remedies sought by the plaintiffs in the class action would be "stronger instruments of behaviour modification" than the results of independent investigations into police conduct. The Court also considered the fact that most of the affected individuals were unwilling to devote the time and expense necessary to seek individual relief.
  • There was no procedural unfairness to the defendant in allowing two class proceedings to be certified in the absence of discrete Statements of Claim since this possibility was raised in the plaintiff's factum before the Divisional Court and TSP had the opportunity to respond.

Key Take-Aways

This Court of Appeal's ruling confirms the Court's flexible application of the class proceedings rules and its broad willingness to allow representative plaintiffs to reformulate their claims and modify their approach to a proposed class action, even during the appellate process. As a result, defendants should be mindful of the malleable nature of the class proceedings regime and the corresponding reality that "success" at the certification stage is by no means an "all or nothing" proposition.


[1] 2013 ONSC 3026 at paras. 179-80.

[2] 2014 ONSC 4583 at para. 35.

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.

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