“This creature called conditional certification”: Ontario Court of Appeal overturns certification in veterans’ proposed class action

In Knisley v. Canada (Attorney General), 2025 ONCA 185, the Ontario Court of Appeal overturned the motion judge’s conditional certification of a class action.

In its decision, the Court of Appeal provides helpful guidance to litigants on the extent to which motion judges can fashion certification orders that attempt to overcome substantive deficiencies in a plaintiff’s class definition. Knisley confirms that the court must either find that all of the necessary certification criteria are met, or decline to certify the proceeding as a class action.  

Background

This case concerns a class action brought by Canadian veterans over systemic delays in the administration and delivery of disability benefits by Veterans Affairs Canada.

The proposed representative plaintiff, Andrew Knisley, served as a member of the Canadian Armed Forces infantry. Active members and veterans of the Armed Forces may be entitled to financial support and compensation for the impacts of disabilities sustained while in service. These disability programs are delivered and administered by Veterans Affairs Canada.

In 2009, Mr. Knisley was seriously injured by an improvised explosive device while serving in Afghanistan. As a result of the explosion, he lost his entire right leg, and suffered multiple other injuries including a traumatic brain injury, hearing loss, and nerve damage. He returned from his deployment only to encounter significant delays and administrative hurdles while attempting to access disability benefits offered by Veterans Affairs Canada.

There are no legislated timelines for the resolution of an application for benefits offered by Veterans Affairs Canada. However, Veterans Affairs Canada has adopted “Service Standards”, which stipulate target timelines for the resolution of applications. The current Service Standard requires that 80% of decisions regarding disability benefits be made within 16 weeks for first applications and reassessments, and within 12 weeks for departmental reviews.

The Underlying Certification Decision

The Honourable Mr. Justice Sutherland heard the plaintiff’s certification motion. Justice Sutherland released a decision which conditionally certified the class action: Knisley v. Attorney General of Canada, 2024 ONSC 3528.

After describing  the relevant factual context, the legislative scheme, and the process for administration of veterans’ benefits, the Court addressed the five criteria for certification prescribed by the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”). The Court found that the pleadings disclosed a cause of action in negligence, that the class members raised common issues, that a class proceeding was the preferable procedure, and that Mr. Knisley was a suitable representative plaintiff.

However, with respect to the identifiable class criterion, the Court concluded that the plaintiff had not proposed a workable class definition. The class definition proposed by the plaintiff was:

All veterans that are in Case Management as of May 21, 2024, and any future veterans from May 21, 2024, that are placed in Case Management who have applied for and/or are receiving Disability Benefits.

The evidence before the Court was that veterans move in and out of case management at different times, that there are veterans in case management not receiving disability benefits, and that there are veterans who are not in Case Management who are receiving disability benefits. As such, the Attorney General of Canada argued that there was no discernible method to determine whose application was processed within or beyond the Service Standards. The Court agreed with the Attorney General and found that the class definition was unworkable, as it was too narrow and undefined.

Faced with a deficient class definition, the Court reasoned that it had two options: (a) to disallow the certification motion due to the unworkable class definition; or (b) allow the certification “on the condition that the definition be amended to properly define the class that is not too narrow nor too broad”.^[1]

The Court adopted the second option, and found—notwithstanding its concerns regarding the class definition—that the action could be certified on the condition that the class definition be amended.

The action was therefore certified subject to the class definition being amended “to the satisfaction of the parties and the court”.

The Attorney General appealed.

Court of Appeal Decision

While the Attorney General appealed various elements of the certification decision, the Court of Appeal was primarily concerned with the motion judge’s decision to conditionally certify the class action. The Court found that the approach taken by the motion judge with respect to the class definition compromised their conclusions on other certification criteria, including common issues and preferable procedure.

The Court of Appeal reviewed the authorities relied on by the motion judge in arriving at the conclusion that conditional certification was an available option—namely Hollick v. Toronto (City), 2001 SCC 68, and Hoy v. Expedia Group Inc., 2022 ONSC 6650. The Court of Appeal found that the motion judge misapplied these authorities when conditionally certifying the class.

In doing so, the Court identified three principal concerns arising from conditional certifications:

1. The CPA does not contemplate a “conditional” certification. The five criteria set out in s. 5(1) must be met.
2. The class definition informs and impacts the subsequent analysis of whether there are common issues, whether a class action is the preferable procedure, and whether the proposed representative plaintiff is suitable to represent the class.
3. A “conditional” certification spawns various procedural issues, including what happens to the conditional certification if a workable class definition remains illusory. Is the motion judge then required to decertify the proceeding? Further, it creates confusion over the appeal route that litigants should take from a conditional certification.

All of these procedural concerns were apparent in Knisley. While the motion judge certified the class subject to an amendment “to the satisfaction of the parties and the court”, the motion judge had failed to explain the process for amending the definition to achieve such satisfaction or what would occur if agreement on a satisfactory amendment was not reached..

The Court of Appeal confirmed that the CPA refers only to certification, to refusal of certification, and to decertification—there is no statutory language supporting the motion judge’s decision to conditionally certify the proceeding. The Court of Appeal reasoned that the order of the motion judge must be set aside, and remitted the matter back to Justice Sutherland for reconsideration.

Takeaways

Businesses facing a proposed class action and its attendant litigation should continue to treat certification as a legitimate initial hurdle that plaintiffs must overcome. Certification remains the place where battle is squarely joined and the class definition warrants significant scrutiny. A plaintiff’s failure to meet even one of the certification criteria can be fatal.

Knisley also offers a reminder that, despite the fact that judges hearing motions under the CPA enjoy “broad, discretionary powers to manage the proceedings” and to ensure the “fair and expeditious determination”^[2] of a class action, such powers do not permit a departure from the clear wording of the CPA. Certification is not available where the requirements set by the CPA are not met—there are limits on the order a motion judge can fashion to overcome substantive deficiencies in a plaintiff’s claim.   

^[1] Para. 91

^[2] Endean v. British Columbia, 2016 SCC 42