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Class Proceeding (Ont) - Proceeding May Continue in Altered Form [CPA s.7(2)]. Davidson v. T.E.S. Contracting Services Inc. [appeal route]
In Davidson v. T.E.S. Contracting Services Inc. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a class action certification appeal, but preserved the single action of the ostensible-representative plaintiff in the course of deciding the appeal route as interlocutory or final:Jurisdiction
[9] Prior to the hearing of the appeal, the court requested that the parties address the question of whether the Divisional Court had jurisdiction to hear the appeal. The court accepted that it had jurisdiction under the Class Proceedings Act, 1992, S.O. 1992, c. 6 as the Statement of Claim was filed in August of 2020. However, the court wished to hear submissions on whether the Certification Decision had effectively brought the proceedings to an end, making the decision a final one that had to be appealed to the Court of Appeal: see Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, 173 O.R. (3d) 682.
[10] Ms. Davidson argued that we had jurisdiction; TES submitted we did not.
[11] In Lilleyman, the motion judge decided that the claim did not disclose a cause of action. This, according to the Court of Appeal, had the practical effect of bringing the proceeding to an end. In Cavanaugh v. Grenville Christian College, 2013 ONCA 139, 360 D.L.R. (4th) 670, the Court of Appeal found that the order refusing to certify the class proceeding on the basis that a class proceeding was not the “preferable procedure” was just an order refusing to certify and not a final order. However, the order refusing to certify the proceeding against one defendant on the basis that the claim did not disclose a cause of action was more than an order refusing to certify; it ended the proceeding against that defendant.
[12] In this case, the motion judge did not find that Ms. Davidson had no cause of action. He chose not to address that criterion. He only found that her action was not suitable for certification. This does not bring Ms. Davidson’s proceeding to an end. She can still choose to advance her claim through an individual action.
[13] In reaching this conclusion I do not accept T.E.S.’s position that the motion judge’s findings when dealing with the core common issues would, in effect, preclude an individual action. While the motion judge does comment on the strength of Ms. Davidson’s case in relation to her argument that T.E.S. could be considered an employer under s. 74.3 of the ESA, those comments would not be binding on a judge hearing an individual misclassification action. Again, the motion judge did not determine that Ms. Davidson had no cause of action for misclassification; he only determined that the core common issues were not suitable for certification. . Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2024) the Divisional Court dismissed a motion to quash, here of a class action appeal where an issue was an "order transitioning the litigation from a proposed class action to multiple joinder actions" (the 'Transition Order'), which the respondent argued if denied justified a quashing of that aspect of the appeal:[3] The Moving Parties move to quash the appeal of the Transition Order on the basis that the order is interlocutory, not final, and can only be appealed to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43. They also claim that the order does not finally resolve part or all of the dispute between the parties; it only changes the format by which the substantive issues in the proceeding will be determined.
....
[9] However, on his own initiative, the motion judge permitted the action to continue as one or more proceedings between different parties pursuant to s. 7(2) of the Class Proceedings Act, 1992. Section 7(2) provides that:(2) If the court refuses to certify a proceeding as a class proceeding, the court may permit the proceeding to continue as one or more proceedings between different parties and, for the purpose, the court may,
(a) order the addition, deletion or substitution of parties;
(b) order the amendment of the pleadings or notice of application; and
(c) make any further order that it considers appropriate. [Emphasis added] [10] The motion judge agreed with the Moving Parties “that joinder of cases based on similar experiences among claimants” was a “more appropriate and feasible means to achieve access to justice.” He proposed that the litigation proceed by way of an “opt-in joinder action” for 60 actions corresponding with the 60 teams operated by the defendant leagues (the “Section 7 option”). He ordered that the Responding Parties had 120 days to prepare an “Individual Issues Protocol” for the 60 actions and to bring a motion for the approval of the Individual Issues Protocol (the “IIP motion”).
....
[27] The two issues on this motion are whether (i) the Transition Order under appeal was final, or, in the alternative, (ii) the Transition Order is significantly interrelated to the other two appeals such that the appeal of the Transition Order should not be quashed. For the reasons that follow, I would deny the motion on the basis that the three appeals are interrelated such that they should be heard together.
....
[30] In deciding whether to certify the proceeding as a class proceeding or direct the proceeding to continue as a series of individual claims, the motion judge was required to consider the same issue: that is, whether “a class proceeding would be the preferable procedure for the resolution of the common issues”: Class Proceedings Act, 1992, S.O. 1992, C.6 s. 5(1)(d). This is a “comparative exercise”: AIC v. Fisher Limited, 2013 SCC 69, 3 S.C.R. 949 at paras. 22-23.
[31] The proposed class action and the Section 7 Plan are mutually exclusive alternatives. The Transition Order requires the Responding Parties to abandon their appeal of the certification order. If the appeal of the certification order is granted, the Section 7 Plan must be vacated. The appeal of the Transition Order must therefore be determined in a way that does not interfere with the legal questions to be resolved in the two appeals presently before this Court.
[32] There is therefore a significant interrelationship between the appeal of the Transition Order and the other two appeals. . Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2023) the Court of Appeal considered the 'ordered notice' provisions of Class Proceedings Act, 1992, s.7(2), applied here when a certification motion was denied:[3] On February 3, 2023, the motion judge released his decision in which he refused certification of the class action (“certification order”).[1] He also dismissed the action against certain defendants (“dismissal order”). Towards the conclusion of his reasons, commencing at para. 441, the motion judge, apparently of his own initiative, considered whether he should permit the proceeding to continue as one or more proceedings between different parties pursuant to s.7(2) of the CPA. He decided that he should.
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