The B.C. Court of Appeal’s recent decision in Ewert v. Canada (Attorney General), 2022 BCCA 131 provides an important reminder that claims bound to break down into individualized inquiries cannot be certified in a class action. Ewert also reminds courts that the preferability analysis is a requirement under the B.C. Class Proceedings Act and cannot be overlooked—and suggests that, in cases where any common issues are too entangled with individual ones, a class proceeding may not be the preferable procedure for resolving the claims.

Ewert is a proposed class action relating to allegedly unlawful strip searches of inmates. In January 2010, the Correctional Service of Canada received information that an improvised gun had been smuggled into Kent Institution, a maximum-security prison in British Columbia. In response, the warden of the institution authorized two exceptional strip searches conducted under lockdown conditions. During this lockdown, inmates were restricted to their cells, except when removed for strip searches, and programs and visits were suspended. No gun was recovered through either search. Jeffrey Ewert was one of about 215 inmates who were searched. He filed a proposed class action against Canada alleging that the strip searches were tortious and breached inmates’ Charter rights.

The B.C. Supreme Court certified the action as a class proceeding and approved a list of common issues. Canada appealed.

The B.C. Court of Appeal allowed the appeal. It held that all but one of the plaintiff’s claims (misfeasance in public office) would inevitably require individualized inquiries into the particular circumstances and experiences of each proposed class member. These claims were therefore not suitable for class certification.

To obtain class certification, a plaintiff must establish, among other things, that the claims of proposed class members raise common issues, and that a class proceeding would be the preferable procedure for resolving those common issues. Broadly speaking, the question is whether “there can be the strength in numbers advantage of a proceeding that resolves the claim, or substantive aspects of the claim, in one fell swoop” (para. 20).

The court found that the plaintiff alleged common experiences and events that were capable of generating common issues. However, the court also found that the common issues certified by the lower court were “unacceptably entangled with factual matters requiring individualized investigation” (para. 6). For example, the common issues for the class members’ unlawful imprisonment claims would require individualized inquiries into whether each inmate was deprived of their residual liberty by Canada’s agents and whether that deprivation was unlawful. Likewise, the Charter claims implicated inherently personal rights and would require an individualized analysis for each class member, whose circumstances and experiences were not identical.

The court concluded that the only claim capable of certification was the misfeasance in public office claim. This claim arose out of the high-level decision or command to conduct strip searches under lockdown conditions, which had consequences for all inmates that would not require investigation into specific interactions between Canada’s agents and individual inmates. Unlike the other claims, this claim was not bound to break down into individualized inquiries.

Finally, the court held that the lower court erred by not considering preferability after approving common issues. Since the common issues for the misfeasance in public office claim were the only common issues that could be certified, the court referred the preferability question back to the lower court.

Ewert provides important guidance from the B.C. Court of Appeal on the types of issues that are not appropriate for certification as common issues, and an important reminder that commonality alone is not enough to warrant certification—the court must always consider preferability.

Our National Class Actions Group has represented clients in some of the most high-profile class action cases in Canada, in areas like financial services, insurance, product liability, competition law, pensions and benefits, securities, and others. If you have questions about our class actions practice, please contact Jill Yates.