Canada: Good To Go: Court Adopts Flexible Approach To Reformulating Classes On Certification Appeal

Last Updated: April 22 2016
Article by Douglas W. Judson and Jagtaran Singh

Most Read Contributor in Canada, September 2018

On April 6, 2016, the Ontario Court of Appeal (the "OCA") released its decision in Good v. Toronto (Police Services Board) ("Good"). The case concerns the certification of a proposed class in a proceeding arising from events surrounding the G20 Summit held in Toronto in June 2010. The proposed class consisted of individuals who were detained at various locations in the city as police attempted to control protests and demonstrations. The decision has important implications for the court's treatment of proposed class actions that are reformulated in the appellate process, and demonstrates the court's flexible approach to the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 (the "CPA").

Procedural History

The OCA decision is an appeal from the Divisional Court (reasons of August and October 2014), which set aside the order of the motion judge denying certification (reasons of May and September 2013). The OCA certified the claim as two separate class proceedings. Sherry Good is a representative plaintiff for the action.

On the original certification motion, the plaintiff named the Attorney General of Canada, Her Majesty the Queen in Right of Ontario, the Regional Municipality of Peel Police Services Board, and the Toronto Police Services Board (the "TPS") as defendants. There were multiple causes of action cited: false imprisonment, assault and battery, conversion and trespass to chattels, abuse of public office, systemic negligence, and breaches of the Charter of Rights and Freedoms and the Ontario Human Rights Code.

The plaintiff proposed a class definition with 8 subclasses: 1 each for 5 locations where police detained individuals by 'boxing in' or 'kettling', 1 for individuals detained or arrested "in the vicinity of Queen's Park", 1 residual subclass for individuals who were arrested in relation to the G20 summit at other locations and eventually released without charge, and 1 for individuals imprisoned at the central Detention Centre specially constructed for use during the G20 event.

The motion judge, Horkins J., dismissed the certification motion for failing to meet the requirements under s. 5(1) of the CPA. She found that only the claims against the TPS disclosed a cause of action; the proposed subclasses lacked a common link to form an identifiable class; the class definitions used unclear wording and were over-broad; the claim did not raise common issues; and that for these reasons, a class proceeding would not be a "fair, efficient and manageable method of advancing the claim", and according, a class proceeding was not a 'preferable procedure' for the resolution of the common issues.

On appeal to the Divisional Court, the plaintiff substantially narrowed her proposed class proceeding. She reduced the size of the proposed class, removed claims against all defendants except for the TPS, and removed a number of the claims put before the motions judge. Writing for the panel, Nordheimer J. noted that the proposed class action on appeal was "markedly different" from the proposed class action considered by Horkins J. Nevertheless, the Divisional Court allowed the appeal, certifying 2 class actions with representative plaintiffs: 1 class for the 5 kettling sites and 1 class for the Detention Centre. Costs were awarded to the plaintiff, but the amount was reduced out of consideration for the TPS' time and expense in responding to abandoned portions of the claim.

The Court of Appeal Decision

The TPS appealed the Divisional Court's certification decision, and the costs order was cross-appealed by the plaintiff.

First, the TPS argued that the Divisional Court erred by conducting a fresh review of Horkins J.'s certification decision. The TPS pointed to case law indicating that a motion judge's certification decision is entitled to substantial deference by an appellate body. While a reviewing court is entitled to "some latitude" where the plaintiff narrows its proposed action on appeal, the TPS argued that the Divisional Court overstepped and reversed determinations made by the motion judge that were unaffected by the plaintiff's reformulated claim. The OCA disagreed, finding that the narrowing of scope extended the Divisional Court some leeway to revisit determinations made on the initial motion. Writing for the panel, Hoy A.C.J.O. found that while some determinations made by motions judge were of no significance on the original motion, they became significant in the context of the motion as re-framed before the Divisional Court. This necessitated the reviewing court's intrusion.

Second, the OCA went on to find that the classes certified by the Divisional Court met all of the criteria under s. 5(1) of the CPA. Hoy A.C.J.O. emphasized that the commonality of the alleged police order or command leading to the detainments served to link the class members of the location-based subclasses to a degree sufficient for certification. Even if the location-based subclasses could be properly described as distinct classes, Hoy A.C.J.O. found that this distinction was without substance, concluding that "where, as here, the proposed classes share a central commonality, joining multiple classes in the same class proceeding would facilitate recognized goals of class proceedings." The OCA deemed that a class proceeding is a preferable procedure for resolving the common issues in this case given that a class action would be a stronger instrument of behaviour modification than individual actions or the various reviews of policing that were launched after the Summit.

Finally, the OCA also made findings on further issues raised in the appeal:

  • First, that it should be left to the common issues judge to determine whether aggregate or punitive damages would be an appropriate remedy under s. 24(1) of the CPA;
  • Second, that certifying 2 separate class actions did not give rise to procedural unfairness to the defendant since this possibility was already raised in the plaintiff's Divisional Court factum; and
  • Third, while agreeing that the plaintiff was entitled to some reduction in costs given the substantial changes to her motion, the OCA increased the cost award granted by the Divisional Court in recognition of the fact that the plaintiff's "central claims" against the TPS had remained consistent since the action originated.

Conclusion

Reformulating proposed class actions on appeal can have a ripple-effect of consequences for certification of a class proceeding. Good is an example of the degree of flexibility Ontario courts may apply in the CPA certification test, and of appellate courts' willingness to revisit settled issues on certification motions. The decision underscores the need for class action defendants to be attuned and responsive to the impact on certification that re-framed claims or class structures may have on appellate decision-makers.

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