ABCA overturns ABQB’s decision in denying certification of action alleging abuse
In VLM v. Dominey Estate, 2023 ABCA 261, the Alberta Court of Appeal overturned the Alberta Court of King's Bench in VLM v. Dominey, 2022 ABQB 299. The lower court denied certification of a proposed class action against the Alberta government and the Synod of the Diocese of Edmonton for the actions of a deceased priest who allegedly committed sexual assaults against youth inmates in a correctional facility between 1985 and 1989. In overturning the certification decision and certifying the action, the Court of Appeal appears to (i) limit the application of the “some basis in fact” standard for the preferable procedure criterion, while also (ii) arguably requiring a minimal “basis in fact” to establish the merits of the claim at certification.
The Certification Judge found that the plaintiff met all the certification preconditions except for preferable procedure. Notwithstanding the finding of common issues, the Certification Judge concluded that the fundamental issues of whether each claimant was abused by the individual defendant and the circumstances in which the abuse took place could be determined only in individual trials. The Certification Judge found that, for the individuals capable of advancing an individual claim, allowing a class action to proceed would only delay the ultimate resolution of their claims, including because questioning (discovery) of each claimant would occur more quickly in individual litigation, leading to potentially earlier resolution. Other individual claimants, who faced social and psychological barriers to participate in litigation, were unlikely to come forward. Accordingly, the Certification Judge concluded the class proceeding would not serve access to justice.
For a more detailed discussion of the certification decision, please refer to our post from June 24, 2022.
The Court of Appeal found the Certification Judge strayed too far into assessing the merits of the claim, and imposed too high a burden of proof on the proposed representative plaintiff, when he concluded that there was “no basis in fact that Alberta or the Synod knew or ought to have known of Dominey’s abusive behaviour.” While certification of class proceedings engages a meaningful gatekeeping function, this function does not include a review of the merits of the underlying claim. Rather, the certification test examines whether there is “some basis in fact” to support a claim, which is a lower standard than “proof on a balance of probability.” It is to be expected that the evidentiary record on certification will be incomplete.
Thus, the issue of whether the defendants “knew or ought to have known” of the abuse was a common issue to be decided at trial, not certification. However, the Court also stated that the plaintiff did provide a sufficient “basis in fact” of the merits of their claim to support a class proceeding – suggesting that there must be at least some evidence to demonstrate the merits of the claim at certification. This is consistent with the Court of Appeal’s somewhat recent decision in Spring v Goodyear, 2021 ABCA 182, where the Court stated “[c]laims should not be certified, however, if there is a complete absence of evidence to support the claim.” See our analysis of Goodyear, here.
After concluding that there was sufficient basis in fact to support the merits of the claim, the Court turned to the preferable procedure test. While the “some basis in fact” standard has long been applied to the preferable procedure test, the Court determined that preferable procedure is not a factual matter amenable to conventional proof by evidence. Rather, the analysis requires “legal conclusions that depend on the entire context of the case, the pleadings, the submissions of counsel, previously decided cases, and the experience of case management judges.”
Thus, instead of focusing on whether there is “some basis in fact” that a class proceeding is the preferable procedure, the Court should instead balance factors that favour a class action with those that favour individual actions, with regard to the objectives of class proceedings: judicial economy and efficiency, access to justice, and behavior modification. The Court explained:
 In this appeal there is “some basis in fact” supporting the factual issues underlying the class proceeding. For example, the record confirms that there is some basis in fact that the appellant and the class members were incarcerated at the Centre, that Father Dominey was engaged to provide chaplaincy services there, that the class members were sexually assaulted by him, and that a number of the class members face barriers to pursuing individual claims. Against this “basis in fact”, whether a class proceeding is the preferable procedure involves a balancing of the factors mentioned in s. 5 having regard to the objectives of class proceedings.
In balancing the factors with regard to the objectives of class proceedings, the Court concluded that a class proceeding was the preferable procedure. While acknowledging that the common issues could not resolve liability, as each individual would need to prove sexual assault, a class proceeding was prima facie the preferable procedure for resolving the issues of duty of care, standard of care and breach of the standard of care as against the institutional defendants. For example, the Court noted that if there was a duty on the part of the institutional defendants to screen the abuser, and hiring the abuser indicated a failure in proper screening, then it was hard to see how the duty and breach of the standard of care would be different among class members.
The vicariously liability of the institutional defendants was also appropriate for resolution on a common basis – based on the principles of vicarious liability, it was highly unlikely that the institutional defendants would be vicariously liable for some of the abuser’s conduct but not all. Thus, the Certification Judge erred in assuming that resolution of the common issues was not the preferable procedure unless that would result in the final determination of liability. The test is whether the resolution of the common issues would advance the action, even if other individual issues must be resolved later.
Addressing these common issues through a class proceeding was also consistent with the objectives of class proceedings, particularly access to justice. A number of class members experienced psychological harm and faced socio-economic difficulties as a result of the alleged abuse. The Court determined that achieving the goal of access to justice effectively necessitates enabling those who do not face such obstacles to pave the way for the other class members who might otherwise be denied a fair adjudication of their claims. Resolving the common issues, along with a method for addressing individual claims, would greatly enhance access to justice for the more vulnerable members of the class. As a result, a class proceeding was the preferable procedure for resolution of the common issues and the Court certified the action.