In Ingram v. Alberta1, the Court of King's Bench of Alberta certified a class action on behalf of affected Alberta business owners (the "Plaintiffs") who allegedly suffered losses due to business restrictions and closures required by orders enacted pursuant to Alberta's Public Health Act (the "PHA")2 in response to the COVID-19 pandemic (the "Impugned Orders").
This certification comes on the heels of Ingram v. Alberta (Chief Medical Officer of Health),3 where the same Court held that the Impugned Orders were ultra vires the PHA because the final decision to issue the Impugned Orders was made by Cabinet or a Cabinet committee, who did not have authority under the PHA to make such orders.
In the present matter, the Court found that all five criteria for class certification under Alberta's Class Proceedings Act (the "CPA")4 had been satisfied, accepting novel causes of action and shortcomings in the class definition as plead by the Plaintiffs, in order to avoid thousands of individual claims sure to strain judicial resources.
THE COURT'S DISPOSITION
Causes of Action: The Plaintiffs advanced claims including breach of the Alberta Bill of Rights, negligence and misfeasance in public office. Justice Feasby determined that these claims, though novel in part, were not bound to fail and could proceed.5
Although the Court acknowledged that breach of a statutory duty cannot form the basis for a tort action, it was held that the alleged breach of the Alberta Bill of Rights properly formed the basis for a cause of action in this case, since the Plaintiffs were only seeking declaratory relief instead of damages.6 In coming to this determination, the Court noted that a cause of action is merely "a set of facts entitling a plaintiff to a remedy", which does not necessarily include a right to damages.7
A significant aspect of the ruling was the recognition of a potential novel duty of care. The Plaintiffs argued that the Alberta Bill of Rights imposed a duty of care not to deprive Albertans of enjoyment of property without due process of law.8 The Court concluded that this was "arguably a positive duty to act", such that the statutory duty may constitute a private law duty of care. The Court held that although the alleged duty of care was novel, it was "sufficiently plausible" and may be considered by a trial judge.9
Identifiable Class: The Plaintiffs described the proposed class as:
"Natural persons who: (a) owned or operated, either wholly or partially, a business or businesses in the Province of Alberta, and whose business operations were fully or partially restricted as a result of the measures contained in the [Impugned Orders] resulting in economic losses [...]".10
Alberta objected to the proposed class for a number of reasons, including because it included shareholders of widely held corporations, presenting a challenge to identify and notify all of these individuals.11 The Court identified another issue with including corporate shareholders in the proposed class – the shareholders had no cause of action against Alberta given that shareholders have a separate legal identity from the corporation, and cannot sue for wrongs done to the corporation.12
Ultimately, the Court accepted the Plaintiff's proposed class as revised in their Reply Brief, with the "minor clarification" that the word 'owned' in the class definition, is to be read not to include ownership via shares in a corporation.13
Despite Alberta jurisprudence which suggests that on certification applications, judges should not "enter the ring" and intervene to correct deficiencies in a pleading, the Court here took an active role in refining the class definition to exclude shareholders.14
Preferrable Procedure: In finding that a class proceeding would be the preferred procedure over separate actions by each individual plaintiff, the Court emphasized the need for access to justice for small business owners unable to pursue costly individual claims.15 Further, given the finding that there were a number of common issues among the proposed class members, a class action was deemed to be the most efficient means of advancing the claims.16
CONCLUSION
This decision exemplifies the weight given to considerations of fairness and judicial economy in determining whether a class proceeding ought to be certified. In this case, the Court was willing to accept causes of action that were only "sufficiently plausible" and a proposed class definition with "minor" flaws, for the sake of preserving limited judicial resources, promoting efficiency in the judicial system and providing access to justice.
The Court indicated a strong preference to avoid the possibility of thousands of independent actions to recover damages alleged to have been caused by the Impugned Orders, stating that the proliferation of such actions would be "the antithesis of judicial economy."17
Footnotes
1. 2024 ABKB 631 [Ingram].
2. RSA 2000, c P-37.
3. 2023 ABKB 453.
5. Ingram at para 24.
6. Ingram at paras 14-18.
7. Ingram at para 17, citing Grant Thornton LLP v New Brunswick, 2021 SCC 31 at para 38.
8. Ingram at para 21.
9. Ingram at para 24.
10. Ingram at para 78.
11. Ingram at para 79.
12. Ingram at para 80, citing Alberta Business Corporations Act, RSA 2000, c B-9, s 16(1); Saloman v A
Saloman & Co Ltd, [1897] AC 22 (HL); Foss v Harbottle, (1843), 67 ER 189 (HL).
13. Ingram at para 87.
14. Ingram at paras 86-87, citing Andriuk v Merrill Lynch Canada Inc, 2013 ABQB 422 and Caputo v Imperial Tobacco Ltd, 2004 CanLII 24753 (ONSC). Relying on Caputo, the Court here held that the amendments made were a "minor clarification" rather than a "wholesale change" and were therefore, acceptable.
15. Ingram at para 108-110.
16. Ingram at paras 105-108.
17. Ingram at para 111.
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