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Class Actions (Ont) - Certification - 'Conditional' Certification. Knisley v. Canada (Attorney General)
In Knisley v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal allows an appeal, here from an unusual 'conditional' class action certification - which left uncertain the 'identifiable class' element:B. The motion judge’s decision
[16] In terms of the requirements for certification under s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6, the motion judge began by determining if the fresh as amended statement of claim disclosed a cause of action. The motion judge found that, of the five causes of action asserted, only one – the claim in negligence – constituted a valid cause of action. He rejected the claims based on a breach of the Charter of Rights and Freedoms, fiduciary duty, contract, and negligent misrepresentation. Canada appeals only from the determination that the claim in negligence is a valid one.
[17] In terms of whether there is an identifiable class, the motion judge found that the class as defined did not satisfy that requirement. He noted that an earlier class definition had been problematic because the time period in the definition was too broad. The motion judge found that the current definition suffered from different problems.
[18] Having reached that conclusion, the motion judge said, at para. 91, that he had two alternatives. He identified those alternatives as (i) disallowing the certification motion or (ii) allowing the certification “on the condition that the definition be amended to properly define the class”. He chose the latter alternative.
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C. Analysis
(1) Conditional certification
[20] I begin with this issue because, as I shall explain, it has implications for other requirements in s. 5(1), namely, common issues and preferable procedure.
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[24] .... the motion judge certified the action as a class proceeding. He made the certification order subject to the class definition being amended “to the satisfaction of the parties and the court”. The motion judge did not give any direction as to how the class definition could be amended to achieve that satisfaction nor did he address what might happen if the parties, or the court, could not reach that satisfaction.
[25] In reaching this conclusion, the motion judge relied on two decisions: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, and Hoy v. Expedia Group Inc., 2022 ONSC 6650, aff’d 2024 ONSC 1462, 171 O.R. (3d) 114. In my view, the decision in Hollick, properly read, does not support the certification route that the motion judge took.
[26] The reliance on Hollick turns on one sentence in the reasons. At para. 21, McLachlin C.J. said: “Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended:” (references omitted).
[27] In my view, McLachlin C.J. was not saying, in that sentence, that a class action could be certified with no identifiable class being established. Rather, she was offering the view that, in a circumstance where the proposed class definition was not acceptable, the motion judge could simply dismiss the certification motion, or the motion judge could amend the class definition to make it acceptable. The representative plaintiff could then accept the class definition as amended or abandon the class proceeding.
[28] I reach this conclusion for three principal reasons. First, there is nothing in the Class Proceedings Act, 1992 that contemplates “conditional” certification. To the contrary, s. 5(1) establishes five criteria that need to be met. If those criteria are met, then the court “shall” certify the class proceeding. The section does not contemplate some requirements being met and others not being met. If the Legislature had intended that result, they could have easily said so.
[29] Second, the class definition has a direct impact on the analysis whether there are common issues and whether a class proceeding is the preferable procedure. Indeed, it also impacts on whether the proposed representative plaintiff is appropriate, although it does not appear that that issue would arise in this case.
[30] Third, certain procedural issues arise from such a conditional certification. For example, what happens if the parties cannot agree on a class definition or on one that the court finds acceptable? If it transpires that there is not a workable class definition, what then happens to the conditional certification? Does the certification simply lapse or does the motion judge have to decertify the proceeding under s. 10
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[33] The determination of an identifiable class is a crucial aspect of the certification process. It establishes whose rights are going to be determined in the proceeding and, consequently, it determines who has the right to opt out of that determination. It is not acceptable to purport to certify a proceeding as a class action with that critical aspect undetermined. I would add, on that point, that almost a year has passed since the motion judge’s order and there is still no identifiable class.
[34] I am reinforced in my view of this matter by the two decisions to which McLachlin C.J. made reference in the sentence that is relied on. One is Webb v. K-Mart Canada Ltd. (1999), 1999 CanLII 15076 (ON SC), 45 O.R. (3d) 389 (S.C.), where the motion judge did exactly what I say McLachlin C.J. was contemplating, that is, in certifying the proceeding as a class action, the motion judge amended the class definition to make it acceptable. The other is Mouhteros v. DeVry Canada Inc. (1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (S.C.) where the motion judge took the other alternative. He dismissed the motion to certify based, in part, on his finding that the class definition was “over-inclusive”.
[35] Put simply, in neither instance do the cases, to which McLachlin C.J. referred in Hollick on this issue, involve a conditional certification.
[36] In terms of the motion judge’s reliance on Hoy as authority for his conditional certification, the motion judge in Hoy did not actually decide whether there was an identifiable class because of other obstacles that arose regarding certification. To the degree that he discussed the problems he saw with the class definition as proposed, the motion judge said that “subject to amendments to the Class Period”, the identifiable class criterion could be satisfied: at para. 28. Thus, the motion judge did in that case, what I say McLachlin C.J. was referring to in Hollick, and what the motion judge did in Webb, which was make an express amendment to the class definition to make it acceptable. I would add that, in discussing the class definition, the motion judge in Hoy referred to the direct relationship that can exist between the identifiable class and the common issues.
[37] On this point, the respondent relies on the decision in Brown v. Canada (Attorney General) 2013 ONCA 18, 114 OR (3d) 355. That decision does not hold that it is appropriate to conditionally certify a class proceeding. It simply records the fact that one of the parties in that case allowed that it might be proper to do so. To the degree that it is relevant to the point here, the decision does hold that it was not appropriate to conditionally certify a class action absent a viable cause of action.
[38] The respondent refers to five other cases, two of which do not actually address this issue. In two other decisions of the British Columbia Supreme Court, where the issue was discussed, both decisions went to the British Columbia Court of Appeal and in neither case did the Court of Appeal address this issue. The one other Ontario decision to which the respondent refers is Griffin v. Dell Canada Inc. (2009), 2009 CanLII 3557 (ON SC), 72 C.P.C. (6th) 158 (Ont. S.C.), aff’d 2010 ONCA 29, 98 O.R. (3d) 481. However, in that case, the motion judge gave specific directions on the amendments that had to be made to the class definition: at para. 70. Again, it was not conditionally certified.
[39] I will mention one other case. In Lockhart v. Canada (Attorney General), 2024 ONSC 6573, Healey J. commented directly on the approach taken by the motion judge in this case and said, at para. 220: “With respect, this approach appears to be at odds with the duty of the motions judge to certify only if all of the preconditions for certification have been met.”
[40] There is no foundation in the Class Proceedings Act, 1992, for a conditional certification. The statute refers to certification, to refusal of certification, and to decertifying a class proceeding, but it does not refer to conditional certification. Nor is there any reference to the concept of a conditional certification in s. 8, which sets out the mandatory contents of a certification order.
[41] Finally on this issue, it is not appropriate to conditionally certify a class proceeding. To do so, not only gives rise to the procedural problems that I have discussed above, but it has a direct impact on three of the other stipulated requirements. Indeed, it is difficult to see how a proper determination could be made regarding the existence of common issues and the preferability of the class proceeding without knowing who compromises the class.
[42] In my view, the order of the motion judge conditionally certifying this action as a class proceeding must be set aside.
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