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Class Actions

Class Proceedings Act, 1992

. Bowman v. Ontario

In Bowman v. Ontario (Ont CA, 2022) the Court of Appeal set out basics of the certification of a class action:
IV. GOVERNING LEGAL PRINCIPLES REGARDING CERTIFICATION

[25] The principles regarding the certification of a class proceeding are well-established:
(i) In Ontario, s. 5 of the CPA contains the criteria for certifying class actions. The CPA should be construed generously in a way that gives full effect to the benefits foreseen by the drafters: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at paras. 14-15;

(ii) The onus is on the representative plaintiff to show why the certification criteria have been met;

(iii) The certification stage is decidedly not meant to be a test of the merits of the action. The certification stage focuses on the form of the action. The question is not whether the claim is likely to succeed but whether the suit is appropriately prosecuted as a class action: Hollick, at para. 16; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 102.

(iv) The plaintiff must show “some basis in fact” for each of the certification criteria, other than the requirement that the pleadings disclose a cause of action: Hollick, at paras. 25-26; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 27; Shah v. LG Chem Ltd., 2018 ONCA 819, 142 O.R. (3d) 721, at para. 22, leave to appeal refused, [2018] S.C.C.A. No. 520; Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, leave to appeal refused, 2019 CanLII 37480 (SCC), at para. 41;

(v) The certification requirement under CPA s. 5(1)(a) – the pleadings or notice of application discloses a cause of action – is the same as the test in r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, under which a party seeks to strike out a pleading on the ground it discloses no reasonable cause of action: Cirillo v. Ontario, 2021 ONCA 353, 486 C.R.R. (2d) 25, at para. 32, leave to appeal refused, [2021] S.C.C.A. No. 296. Accordingly, in assessing whether the representative plaintiff has met s. 5(1)(a)’s criterion, the court must ask whether, taking the pleaded facts to be provable and true, it is “plain and obvious” that the pleading discloses no reasonable cause of action (or cause of action supportable at law), or the claim has no reasonable prospect of success: Hollick, at para. 25; Pioneer Corp., at para. 27; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at para. 14; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17, 22; and Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 4. While the approach must be generous and err on the side of permitting a novel but arguable claim to proceed, at the same time a claim will not survive an application to strike simply because it is novel. If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck: Imperial Tobacco, at para. 21; Atlantic Lottery, at para. 19.
[26] The standard of review on appeal for each particular certification question depends on the nature of the question: Pioneer Corp., at para. 28. Whether a plaintiff has a cause of action is a question of law reviewable on a standard of correctness: Pioneer Corp., at para. 57. Whether the certification judge has identified the appropriate standard for certifying loss as a common issue is also a question of law: Pioneer Corp., at para. 94. Otherwise, substantial deference is owed to a certification judge’s application of the test for certification and determination of the common issues. On such questions, appellate court intervention should be restricted to matters of general principle: Fehr, at para. 39.
. Salna v. Voltage Pictures, LLC

In Salna v. Voltage Pictures, LLC (Fed CA, 2021) the Federal Court of Appeal sets out some basics of federal class actions:
[67] The objectives of class proceedings are well known: (i) facilitating access to justice through the distribution of legal fees across a large number of class members, (ii) conserving judicial resources by reducing unnecessary duplication in the fact-finding and legal-analysis process, and (iii) modifying harmful behaviours by ensuring that actual and potential wrongdoers take into full account the harm they are causing or might cause (Dutton at paras. 27, 29; Hollick at paras. 15, 16, and 25). These advantages exist not only in a typical plaintiff class proceeding, but also in the case of a reverse class proceeding, where specific plaintiffs bring a proceeding against a class of defendants. Defendant/respondent class proceedings have been described "“[…] as a means of providing plaintiffs with an enforceable remedy where it was otherwise impractical to secure the attendance of all potential defendants, while at the same time ensuring that those affected by the outcome of a lawsuit, although absent, were sufficiently protected”" (Chippewas at paras. 16-17).

[68] Recognizing these advantages, the Federal Courts Rules allow for the certification of both plaintiff and defendant applicants (when the underlying proceeding is an action) and applicant and respondent applicants (when the underlying proceeding is an application) for class proceedings (Rules 334.14(2) and 334.14(3)).

[69] Regardless of the type of class proceeding, a judge must certify a proceeding if the criteria in Rule 334.16 are met. These criteria are:
(a) the pleadings disclose a reasonable cause of action;

(b) there is an identifiable class of two or more persons;

(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;

(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and

(e) there is a representative plaintiff or applicant who
(i) would fairly and adequately represent the interests of the class,

(ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,

(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and

(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record.
The balance of the case is a useful walk-through of the criteria for certification of federal class actions.

. Cirillo v. Ontario

In Cirillo v. Ontario (Ont CA, 2021) the Court of Appeal noted the same standard between striking pleadings motions and part of the main class action criterion:
[32] Section 5(1)(a) of the CPA requires that the pleadings disclose a cause of action. The certification requirement under s. 5(1)(a) is the same as r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The pleadings cannot form the basis of a claim if it is “plain and obvious” that they do not disclose a cause of action.
. Fresco v. Canadian Imperial Bank of Commerce

In Fresco v. Canadian Imperial Bank of Commerce (Ont CA, 2021) the Court of Appeal considered the appeal route under the Class Proceedings Act, 1992:
[19] Whether this court has jurisdiction over an appeal from a judgment or order in a class proceeding is a two-step analysis. The first question is whether the appeal is from a judgment or order covered by s. 30 of the CPA, and if so, whether s. 30 directs the appeal to this court. If the order is not one covered by s. 30 of the CPA, then whether the appeal lies to this court is determined by the provisions of the CJA. In the latter circumstance, the primary determinant is whether the order is final, as opposed to interlocutory: Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16.

[20] The version of the CPA that governs this appeal provided, in s. 30(2) and (3), as follows:
(2) A party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court.

(3) A party may appeal to the Court of Appeal from a judgment on common issues and from an order under section 24, other than an order that determines individual claims made by class.
. Canada (Attorney General) v. Jost

In Canada (Attorney General) v. Jost (Fed CA, 2020) the Federal Court of Appeal considered a class action certification under the Federal Court Rules:
V. The Federal Courts Rules Governing Class Actions

[22] Certification motions are governed by Rule 334.16(1) of the Federal Courts Rules, which states that a judge shall certify a proceeding as a class proceeding if the following five requirements are met:
(1) the pleadings disclose a reasonable cause of action;

(2) there is an identifiable class of two or more persons;

(3) the claims of the class members raise common questions of law or fact (whether or not those common questions predominate over questions affecting only individual members);

(4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and

(5) there is a representative plaintiff or applicant who would fairly and adequately represent the interests of the class, among other requirements.
[23] It should be noted that the criteria set out in the Federal Courts Rules are substantially similar to the class action certification criteria applied in Ontario and British Columbia, with the result that the jurisprudence emanating from those jurisdictions is instructive: Buffalo v. Samson Cree Nation, 2010 FCA 165, 405 N.R. 232 at para. 8.

VI. General Principles Governing Class Proceedings

[24] Before addressing the Attorney General’s arguments as to why the pleadings in this case do not disclose a reasonable cause of action, it is helpful to start with a review of the general principles governing class actions.

[25] As the Supreme Court has observed, class actions allow for improved access to justice for those who might otherwise be unable to seek vindication of their rights through the traditional litigation process. Class actions also enhance judicial economy, allowing a single action to decide large numbers of claims involving similar issues. Finally, class actions encourage behaviour modification on the part of those who cause harm: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at paras. 27-29; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 27; and Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184.

[26] The Supreme Court has also held that an overly restrictive approach to the application of class action certification legislation must be avoided, so that the benefits of class actions can be fully realized: Western Canadian Shopping Centres, above at para. 46; Hollick, above at para. 15.

[27] As this Court observed in John Doe, the focus at the certification stage is on the form of the action. The question at this point is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action: above at paras. 23 and 24.

[28] The onus is on the plaintiff in a certification motion to establish an evidentiary basis for certification: Hollick, above at para. 25; John Doe, above at para. 24. That is, the plaintiff must show some basis in fact for each of the certification requirements, apart from the requirement that the pleadings disclose a reasonable cause of action. Each of the asserted causes of action will be addressed in turn.


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