No Go: Court Refuses to Certify Class Action Against Newfoundland for Restricting Travel During COVID-19
In Koehler v. Newfoundland and Labrador, 2021 NLSC 95, the Supreme Court of Newfoundland and Labrador refused to certify a proposed class action seeking damages for the provincial government’s COVID-19 travel restrictions. Justice Boone determined the class action did not meet the requirements for certification under the Class Actions Act.
Koehler provides important guidance on the certification of claims for Charter damages, particularly in the rapidly developing area of mobility rights. On that score, the decision extends the Court of Appeal for Ontario’s recent line of jurisprudence articulating the level of fault that will justify Charter damages. Even where fault is alleged, a class proceeding will not be certified on bald pleadings that the government knew it was violating the Charter. More is required, and it was lacking here.
The authors served as co-counsel for the defendant, together with Don Anthony, Q.C. of the Newfoundland and Labrador Department of Justice.
The impugned travel restrictions
After the provincial government declared COVID-19 a public health emergency in March 2020, the Chief Medical Officer of Health made special orders prohibiting travel to Newfoundland and Labrador. The orders included a list of exemptions. Individuals who did not fit within a defined exemption could apply for one.
By the time that certification was argued in Koehler, the court had already considered a different challenge to the same travel restrictions in Taylor v. Newfoundland and Labrador, 2020 NLSC 125. In Taylor the court held: (a) the statute authorizing the travel restrictions fell within provincial jurisdiction; (b) the travel restrictions violated the Plaintiff’s right to mobility guaranteed by s. 6(1); and (c) the violation was justified under s. 1 of the Charter.
The proposed class action
The Koehlers are Ontario residents who own property and operate a seasonal business in Newfoundland. They planned to travel to the province in the spring of 2020 but cancelled those plans upon hearing about the travel ban. In July, they applied for an exemption, which was granted the following day. Thereafter, they traveled to Newfoundland and operated their business.
The plaintiffs claimed that the government’s travel restrictions were negligent and amounted to a nuisance. They also claimed that the travel restrictions violated their Charter rights to peaceful assembly (s. 2(c)), mobility (s. 6), liberty and security of the person (s. 7), and equality (s. 15). The plaintiffs claimed damages at common law and under s. 24(1) of the Charter.
The plaintiffs sought to certify a class proceeding for residents of other provinces who owned property in Newfoundland and Labrador and wanted to enter the province, but were barred by the travel restrictions. At the hearing of the certification application, the plaintiffs abandoned their claims for negligence and a breach of s. 7 of the Charter.
The certification decision
Justice Boone found that the Koehlers had failed to satisfy any of the five criteria for certification:
- The pleadings did not disclose a viable cause of action:
- Freedom of assembly: The plaintiffs did not claim their freedom was affected by restrictions on gatherings, but merely that they were prevented from coming to the province. Peaceful assembly protects people, not a particular venue.
- Equality rights: Since a person’s residence is clearly subject to change, place of residency is not an analogous protected ground under s. 15.
- Charter damages: Though it was not “plain and obvious” that the plaintiffs’ mobility rights claim would fail, the claim for Charter damages had no reasonable prospect of success. It was not enough to baldly allege that the government knew or should have known that its actions were unconstitutional, particularly since the travel restrictions had been upheld in Taylor.
- Nuisance: This tort requires an interference with the use of land that affects the land itself or a related amenity. The travel restrictions were directed at people, not land.
- There was no identifiable class of two or more persons. The plaintiffs had considerable difficulty defining an objective class that did not depend on subjective intentions to enter the province. When they focused instead on those who were actually denied entry, they were met with the objection that they were no longer members of their own class and there was no evidence of two or more persons who might fit the class definition.
- The claims did not raise any common issues. To the extent that any of the plaintiffs’ claim disclosed a reasonable cause of action, the claim would be wholly determined by the circumstances of the claimant, and it would be unsuitable for resolution in a class proceeding. Further, there was no basis in fact to support the fault required for Charter damages.
- A class action was not the preferable procedure to resolve the issues. Newfoundland and Labrador requires non-residents to opt into class proceedings. Although the court accepted that the Koehlers could be appointed as representative plaintiffs, the proposed class was entirely composed of non-residents who would have to opt-in. Therefore, a class proceeding offered no material advantage over a joinder action.
- The Koehlers were not suitable representative plaintiffs. Because it was conceded that the plaintiffs were never prevented from entering Newfoundland, they could not actually assert the claims that they had pleaded.
Therefore, the court refused to certify a class proceeding.
The defendant had brought an application for summary trial to dismiss the Koehlers’ underlying action, which was to be heard in tandem with the plaintiffs’ application for certification. For procedural reasons, the hearing of the application for summary trial was adjourned to September 2021. Given that the plaintiffs’ claims were effectively struck for failure to disclose a reasonable cause of action, it remains to be seen whether they will continue to resist the application for summary trial or consent to the dismissal of their action.
 Brazeau v. Canada (Attorney General), 2020 ONCA 184 at paras 66-67; Francis v. Ontario, 2021 ONCA 197 at paras 88-92.
 Taylor v. Newfoundland and Labrador, 2020 NLSC 125 [Taylor] (this decision is under appeal).