Certification of an “Uncommon” Class Action based on a “Central Commonality”
The Ontario Court of Appeal recently reiterated several key principles in the context of class action certification motions. In Good v Toronto Police Services Board, 2016 ONCA 250 [Good], the Court of Appeal upheld the Divisional Court decision to certify the claim of Ms. Sherry Good as representative plaintiff (the “Representative Plaintiff”) in the proposed G20 class action against the Toronto Police Services Board (the “TPS”). The decision in Good reminds us of two very important considerations in class action proceedings:
- the outcome of the certification application is highly dependent on how the proposed class action is framed, particularly where the proposed common issues are not initially clear; and
- the legislative goals of access to justice, behaviour modification, and judicial economy will be considered and placed at the forefront of the certification process.
During the G20 summit in June 2010, demonstrations occurred at various locations in Toronto. The police arrested or detained approximately 1,000 individuals. The Representative Plaintiff was among the group of persons who were arrested. She commenced a class proceeding against the TPS, asserting multiple claims. Her motion for certification under the Class Proceedings Act (the “Act”) was originally dismissed. The proposed class proceeding was subsequently narrowed by the Representative Plaintiff on appeal to the Ontario Divisional Court. The Divisional Court certified the narrowed claim as two separate class proceedings, and set aside the order of the motions judge. The TPS appealed the certification decision.
Framing the Issues: Central Commonality Among Class Members
This case highlights that the way proposed classes and common issues are framed and presented is often determinative of whether the action is certified as a class proceeding.
In Good, the class members appeared to each have distinctive and individual stories about the circumstances of their detainment and, in some cases, their imprisonment. However, the certification was granted on appeal by the Divisional Court, and upheld by the Ontario Court of Appeal, because there was a “Central Commonality” among all the individuals. The “Central Commonality” was that each detainment or arrest may have been carried out pursuant to one overarching command order allegedly directed by the TPS.
While the approach endorsed by the Ontario Court of Appeal might appear to broaden the circumstances where class members who appear to have little in common are certified as a proper class, the application of this approach may, and perhaps should, be limited to the unique circumstances in which this case arose.
The Motions Judge’s Decision to Refuse Certification
The Motions Judge declined to certify the action as a class proceeding for a variety of reasons; importantly, she found that the Representative Plaintiff was seeking to certify as one class eight distinct groups of claims with no common link. While it is typically permissible to include subclasses in proposed class actions, the plaintiff must still establish a common link between the class members. Further, the Motions Judge found that the proposed subclasses were defined using unclear words, and the class and subclass definitions were overly broad.
The Successful Appeals
The Representative Plaintiff appealed to the Divisional Court, but had by then narrowed the proposed class proceeding, including by removing several Defendants, shrinking the proposed class, and abandoning a number of the claims originally asserted. The Divisional Court certified the class proceeding, relying on the significantly narrowed proposed proceeding as the basis for doing so with respect to the requirements under section 5(1) of the Act, including the cause of action, the identifiable class, and the preferable procedure.
The Court of Appeal largely agreed with the Divisional Court. Although the Court of Appeal noted that the Motions Judge’s certification decision is generally accorded significant deference, the Divisional Court’s essentially de novo review of the certification application was justified here on the basis that the reviewing court should be given some latitude in light of the significantly revised proposed class proceeding.
The Divisional Court and the Court of Appeal distinguished the prior cases of Caputo v Imperial Tobacco Ltd. and Merck Frosst Canada Ltd. v Wuttunee on the basis that the “Central Commonality” was missing in both. In Good, the Divisional Court found that there is a single defendant and a single course of conduct alleged, and that each of the proposed subclasses had the commonality of the alleged command order:
 [T]here is a single defendant and a single course of conduct alleged. Each of the proposed subclasses (save for the Detention Centre subclass) have the commonality of an alleged command order being made ordering the detention of the class members without regard for the individual characteristics or conduct of each class member. Indeed, it is alleged that one command officer, Superintendent Fenton, issued the command order in at least three of the five location based subclasses.
The Court of Appeal supported this finding, stating:
 The plaintiff alleges that Superintendent Fenton was the command officer who issued the order in at least three of the five location-based subclasses, and that either he or one other officer made the order in the other two instances. Having regard to the applicable tests for lawful arrests and detentions that the Divisional Court adverted to, there was some basis in fact for finding that the individual officer or officers who are alleged to have given orders for mass detentions and arrests did so without regard to whether all of the individuals detained, or detained and then arrested, were implicated in the criminal activity with which the police were concerned.
The Divisional Court and the Court of Appeal focussed on the command order as the “Central Commonality” rather than on the distinct circumstances of each individual detainment or arrest. The alleged causes of action, as framed in the revised proposed class proceeding, appear to have arisen from one distinct order which would have applied equally to each class member.
The Court of Appeal further stated that where the proposed classes share a “Central Commonality”, joining the classes in the same class proceeding would facilitate the recognized goals of class proceedings; however, joining the classes in this way remains at the discretion of the Motions Judge.
Given the unique circumstances in Good, particularly alleged command order that formed the basis for the allegations in the proposed class proceeding, the application of this case in other contexts may be limited. An argument could certainly be made that the discretion of the Motions Judge ought to be exercised to refuse to certify a class proceeding where the “Central Commonality” is not as pronounced as it was in this case.
It should be noted that the Divisional Court and the Court of Appeal referred to the recognized goals of class proceedings, including throughout the analysis of s. 5(1) of the Act, and in the Court of Appeal’s consideration of the Representative Plaintiff’s cross-application for costs.
The Court of Appeal endorsed the view of the Divisional Court that it is essential for the courts to avoid an overly restrictive approach to interpreting the legislation. Instead, the benefits intended by the drafters should be given effect. It is clear that the legislative goals of access to justice, behaviour modification, and judicial economy will influence certification decisions and ought to clearly frame the presentation of arguments for or against certification.
Date of Decision: April 6, 2016
access to justice behaviour modification certification motions judicial economy Ontario Court of Appeal