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Class Proceeding (Fed) - Certification - Common Claims and Defences [FCR 334.16(1)(c)]. Canada (Attorney General) v. B.W.
In Canada (Attorney General) v. B.W. (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, this brought against a plaintiff-successful class proceeding certification.
Here the court considers the 'common questions' class certification element [FCA 334.16(1)(c)]:IX. Common Questions
[64] The common questions requirement in Rule 334.16(1)(c) involves asking "“whether the common issue(s) are essential element(s) of each class member’s claim and whether addressing them commonly will avoid duplication of fact-finding or legal analysis”". The common issues need not predominate over individual issues, as long as the common issues meaningfully advance class members’ claims: Greenwood FCA at para. 180; Nasogaluak FCA at para. 100.
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[68] While the motion judge’s analysis is brief, the basis for the conclusion is discernible—that the proposed common questions are capable of meaningfully advancing class members’ claims. The reliance on precedent is justified in demonstrating that claims involving broad, systemic harm — whether in systemic negligence or alleging breach of Charter rights — can have meaningful common elements. A fair reading of the reasons and the pleadings shows engagement with the test for commonality and reveals why the decision was made: Reasons at paras. 87, 100, 108-112, 119, 121. . Michel v. Canada (Attorney General)
In Michel v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal partially allowed an appeal, here from a denied class action certification motion that resulted when "the Federal Court declined to allow the plaintiffs leave to amend their Third Amended Statement of Claim (the Statement of Claim) and to reapply for certification".
Here the court considers the 'common issues' element for federal class proceeding certification:[43] As concerns the third criterion for certification, which requires that the claims of the class members raise common questions of law or fact, the Federal Court set out the test to ascertain commonality as follows, citing Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477 [Pro-Sys] at paragraph 108:1. The commonality question should be approached purposively.
2. An issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim.
3. It is not essential that the class members be identically situated vis-à-vis the opposing party.
4. It is not necessary that common issues predominate over non-common issues. However, the class members’ claims must share a substantial common ingredient to justify a class action. The court will examine the significance of the common issues in relation to individual issues.
5. Success for one class member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. ....
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