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Class Proceeding (Fed) - Certification - Representative Party [FCR 334.16(1)(e)]. McQuade v. Canada (Attorney General)
In McQuade v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a class plaintiffs' certification motion appeal, this where they "sought certification of a class proceeding, as representative plaintiffs, on behalf of a class of current and former regular members of the RCMP with an Operational Stress Injury".
Here the court notes the class certification standard for the 'representative plaintiff' element [Rule 334.16(1)(e)] of 'some basis in fact' (that it would fail):[91] Rule 334.16(1)(e)(i) requires a representative plaintiff to be a member of the proposed class who would fairly and adequately represent the interests of the class: Jost at paras. 103-110; McMillan v. Canada, 2024 FCA 199 at para. 165. A plaintiff seeking certification must adduce evidence to establish "“some basis in fact”" that this requirement is met: Greenwood at para. 94, citing Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25 and Pro-Sys Consultants at para. 99 and other authorities. This threshold is lower than the civil standard of balance of probabilities as certification is not the appropriate stage to resolve conflicts in the evidence: Greenwood at para. 94, citing AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949 at para. 40. Where the Crown challenges this certification criterion based on section 9 of the CLPA, the inquiry will be whether section 9 applies to the proposed representative plaintiffs’ claim such that there is not "“some basis in fact”" for the plaintiff to advance the interests of the class.
[92] The assessment of whether there is "“some basis in fact”" to conclude that a proposed plaintiff is suitable raises a question of mixed fact and law, involving an appreciation of the evidence: Jost at para. 21, citing Canada v. John Doe, 2016 FCA 191 at para. 29. It is therefore reviewable on a standard of palpable and overriding error, absent an extricable legal error. As the Federal Court’s assessment of suitability of the proposed representative plaintiffs involved the interpretation and application of section 9 of the CLPA to their claims, the standard of review for this issue is the same as for the claims of the entire proposed Class. . McMillan v. Canada
In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".
Here the court considers the 'representative party' element of class action certification under the Federal Rules:(3) Is Mr. McMillan an Adequate Representative Plaintiff?
[164] The final requirement for the certification of a class proceeding is that there be a representative plaintiff who can satisfy the Court that he or she would, amongst other things, "“fairly and adequately represent the interests of the class”": Rule 334.16(1)(e)(i). The Federal Court found that Mr. McMillan was not an adequate representative plaintiff in this case, as his own claims were statute-barred: Federal Court reasons at para. 115.
[165] Mr. McMillan accepts that a person who is not a member of a proposed class cannot be an adequate representative plaintiff in a class proceeding in the Federal Court: see the discussion of this issue at paragraphs 103−110 of Jost, above.
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