Whose Interest is it Anyway?: Intervening in the Waldron case

By Elizabeth Yan, 2L

A class action settlement is approved by the court when it is determined to be fair, reasonable, and in the best interests of the entire class. Key considerations for settlement approvals include looking at whether an agreement sufficiently compensates for the relinquishment of each individual class member’s litigation rights and whether the administration of a distribution plan will be fair and timely. Disputes can arise, however, in the course of the administration of the settlement, that pit individual class members against not only the administrator, but also the defendant and even class counsel. How does a court ensure class members are treated fairly in the context of this power imbalance, after a settlement approval process that is characterized by an inherent adversarial void? And how can a court utilize its residual supervisory power to enhance overall access to justice? An upcoming appeal at the Federal Court of Appeal will test the court’s ability to protect the interests of class members post-settlement. The McLean decision stemmed from motions made by class members, Ms. Waldron and Mr. Pooyak, challenging the Claims Administrator’s (Deloitte’s) decision, to reject amended claim forms under the Federal Indian Day School Settlement Agreement (“IDSSA”). Ms. Waldron and Mr. Pooyak are but two class members amongst the 150,000 class members who have made a claim in the Day Schools settlement. Both class counsel and the defendant supported the Administrator’s decision to reject revised claim forms. Phelan J. found that the parties intended only one claim form per claimant within the context and text of what he viewed was a private contractual arrangement. He also found that there were no gaps within the IDSSA that permitted what he called “progressive disclosure”. He noted that the exclusion of progressive disclosure in the IDSSA was meant to minimize re-traumatization.

Not surprisingly, Ms. Waldron has appealed Phelan J’s decision. Last month, a number of organizations, including the Class Action Clinic, sought leave to intervene in the as-yet unscheduled appeal. From the Clinic’s perspective, the appeal raises important questions beyond the interests of Ms. Waldron. What does it mean to implement an administrative procedure that seeks to “minimize re-traumatization”? What is “progressive disclosure”? And when should principles of fairness take precedence over administrative efficiency?

Background: Administrator Decides Own Procedure

The IDSSA is a five-tiered claims process that opened on January 13, 2020. Level one ($10,000) covers physical or verbal harm or abuse. Levels two ($50,000), three ($100,000), and four ($150,000) covers one or more incidents of sexual abuse/harm of varying degrees or physical abuse/assault that causes either temporary but serious harm (level two) or long-term/permanent harm (level three to four). Level five ($200,000) is defined by repeated sexual or physical harm which causes long-term/permanent harm.

In the first six months of the claims period, Deloitte accepted revisions to claims applications. The Administrator later cited the difficulties of claims administration in the midst of the pandemic as justification for a “temporary variation” to the claims procedure. In late May, however, Deloitte changed its position and informed class counsel that it would only accept updates to claims up to June 15, 2020, and only if the claim had not yet been fully settled by payment or adjudication prior to that date. A notice to this effect was posted on the IDSSA website. Ms. Waldron’s and Mr. Pooyak’s claim did not fall within this group of claimants because their updated applications, which outlined a higher level of claim eligibility and harm suffered, were prepared after the June 15, 2020 deadline.

Phelan J. found that because the word application or “Claim” was used in the singular in the IDSSA, the plain meaning of the agreement was that only one claim was intended. He also found that the parties did not intend to repeat the procedure in Indian Residential Schools which had allowed “progressive disclosure”. Even though the Agreement provided that “[a]ll reasonable and favourable inferences that can be drawn of a claimant are to be drawn and doubt is to be resolved in favour of a claimant”, Phelan J. stated that allowing class members to file amended claims would be akin to “insert[ing] a term of ‘progressive disclosure’” and to rewrite terms agreed to in the settlement agreement, which the Court does not have the power to do.

Although the Claims Administrator had not obtained Court approval for previously accepting revised claims, Phelan J. indicated that the “Court likely would have provided” such an approval if requested. According to the decision, those class members who filed revisions before June 15, 2020 had received something of a windfall: “some Claimants may have received the benefit of progressive disclosure to which they were not normally entitled”.

The Appeal

On appeal, Ms. Waldron will argue that the Motion Judge erred in his interpretation of IDSSA and that all class members should be entitled to apply for higher levels of compensation if they have the evidence to support their claims. The Federal Court of Appeal will be asked to determine several issues, including: whether the Motion Judge does or does not have jurisdiction to make a declaration on behalf of the class; whether class members, such as Ms. Waldron and Mr. Pooyak, who are not representative plaintiffs do or do not have standing to seek a declaration on behalf of the class; and whether excluding progressive disclosure in the IDSSA interpretation was a palpable and overriding error by the judge.

The Clinic’s proposed intervention in the Waldron case

On September 20, 2022, the Clinic filed a notice of motion for leave to intervene in this appeal based on its expertise and understanding of the class member experience. The mandate of the Clinic is to support and advance class member rights in a trauma-informed manner. In our experience with class members in the post-settlement context, it is often the case that individual class members facing difficulties with the Administrator cannot rely on class counsel to advance the class member’s interest. Thus, such class members effectively rely on the courts to safeguard their interests. The Clinic sought to assist the court in this crucial role and to help level the playing field between the lone appellant and the three responding parties.

Under the Federal Court Rules, the Court has discretion to grant leave to any person to intervene. The test for intervention in Rothmans (and affirmed in both Sport Maska and Prophet River) lists six non-exhaustive factors (with the weight of each determined by the Court):

a. Is the proposed intervener directly affected by the outcome?
b. Does there exist a justiciable issue and a veritable public interest?
c. Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?
d. Is the position of the proposed intervener adequately defended by one of the parties to the case?
e. Are the interests of justice better served by the intervention of the proposed third party?
f. Can the Court hear and decide the case on its merits without the proposed intervener?

The flexibility inherent in the above test is also described in the Pictou factors, which includes considerations such as whether intervention is in “the interests of justice”; whether the proposed intervener has a “genuine interest in the matter” and “advance[s] different and valuable insights and perspectives that will actually further the Court’s determination of the matter”; and whether evidence provided by the proposed intervener is “detailed and well-particularized”. The intervener test is a flexible one that does not strictly require a party to only be “directly affected” in order to meet the test for intervention. The Clinic’s “genuine interest” in the appeal is the core focus of the assessment for intervention.

The Clinic’s main interest in the McLean appeal is to emphasize the central role of the supervisory judge in guarding class members’ interests to ensure the objective of access to justice is met. The role of the judge is especially important when the named parties to the class action fail to directly raise implementation concerns or actively oppose a procedurally and substantively fair procedure in favour of an efficient one. Moreover, when a settlement agreement purports to minimize the risk of retraumatization, it is an error to interpret that agreement in a manner that manifestly causes trauma.

On November 4, 2022, the Clinic’s motion was dismissed. Both class counsel and the defendant had opposed the Clinic’s intervention, and the motions judge found that the Clinic’s arguments addressing the interpretation and implementation of settlement agreements would be addressed by the two unopposed interveners, the Assembly of First Nations and the Federation of Sovereign First Nations.

The Class Action Clinic understands the difficulties that can arise when navigating the claims process in class actions. The Clinic is committed to providing assistance and information to class members, free of charge. If you are seeking assistance on how to navigate a class action as a class member, please reach out to the Clinic to find out how we may be able to assist.

“Forever Chemicals” and the Potential for Toxic Torts Class Actions in Canada

By: Jacklyn Barrios

In 1948, manufacturer 3M invented a chemical known as Perfluorooctanoic acid (PFOA), used to prevent substances from clumping during production. Three years later, United States chemical company, DuPont, began purchasing PFOA from 3M to use in the manufacturing of Teflon, the non-stick coating on their cookware. PFOA was used in Teflon until 2013. It has also been widely used in other products, such as stain-resistant carpet, ski wax and shaving cream. Unbeknown to the millions of consumers who use these products, however, PFOA is harmful to the environment and to the health of humans and animals.

PFOA is a man-made chemical that is part of the group of chemicals included under per- and poly-fluoroalkyl substances (PFAS). In 2019, Health Canada released a study stating 98.5% of Canadians have three specific types of PFAS in their blood, which includes PFOA. This group of chemicals is very stable and ideal for use in certain products. However, that stability also means that they do not easily dissolve in water or soil. They are “forever chemicals.” Consequently, they remain in the bloodstreams of individuals and animals that have been exposed to them.

As PFAS enter the body, they accumulate. This means that when foods that have PFAS are consumed, the concentration of these chemicals in the body gets higher. PFOA specifically has been known to cause various types of cancer, liver damage, early menopause, and decreased fertility, among other ailments. However, the full scope of the environmental and health effects of PFAS, is not yet known.

DuPont’s use of PFOA was discovered in the United States in 2000 by environmental lawyer Rob Billot. At the time, the chemical was not known to the public, and DuPont did not disclose its use. Mr. Billot discovered that DuPont had conducted its own tests on the effects of the substance decades prior to his discovery, and had found it to be extremely toxic to the health of those exposed to it. Mr. Billot filed a class action against DuPont based on his findings. The suit was settled in 2017 for $617 million. Since then, he has initiated another class action, which would require chemical companies using PFAS to research and mitigate the effects of these chemicals themselves.

Is there potential for a class action in Canada?

Section 5(1) of Ontario’s Class Proceedings Act (CPA) sets out the test for certification of a class action claim. Similar tests exist in legislation across the country, and all require that the plaintiff establish a viable cause of action, one that is not doomed to fail. Could a class action against PFOA manufacturers in Canada pass this threshold?

PFOA is considered a toxic substance in Canada under Schedule 1 of the Canadian Environmental Protection Act(CEPA). This classification bans the release of PFOA, or if it cannot be prevented, requires manufacturers to mitigate any environmental or health effects. Under section 95 of the CEPA, if an individual develops new or worsening health conditions as a result of the release of PFOA, they are entitled to a remedy, such as compensation for medical and prescription costs. On its face, the CEPA therefore provides a viable cause of action against companies that release PFOA.

Another criterion for certification is commonality. The certification judge must be satisfied that there are common issues of law and fact, and that they predominate over, or are more important than, the individual issues affecting class members. The facts surrounding the release of PFOAs and their impacts on human health, and the legality of these manufacturers’ conduct under the CEPA are both common questions that can be answered in one trial.

Class members would still have to prove that they have a health issue, and that the health issue was caused or worsened by PFOA. These are individual questions, but most class actions involve some issues of individual causation and damage assessments. The CEPA requires manufacturers to provide notice to individuals who will likely be adversely affected if PFOA is released. However, it may be difficult to prove the company’s release of the chemical if no notice was given.

Why Start a Class Action?

Starting a class action would increase awareness about the problem of PFAS, and the public attention that comes with litigating a class action can be useful to environmental advocates’ overall strategy. This is exemplified by Mr. Billot’s work in the United States. However, even with this increased awareness, there remains a lack of legislative response, accountability, and research on the effects of PFAS as a whole.

Canada has some legislative gaps regarding this as well. While the CEPA includes PFOA as a toxic substance, the legislation does not include the entire PFAS class. Due to a lack of research, the effects of the other chemicals are largely unknown, and the lack of legislation allows for continuous and widespread use of these potentially toxic chemicals.

The use of PFAS in Canada is in the early stages of regulation, and class actions can be crucial in requiring the courts and other government organizations to respond to these types of issues. Regulating PFAS will allow causes of action that extend past section 95 of the CEPA, and allow members of the public to hold people and companies that use PFAS accountable for the harm they cause. Until then, and in the absence of these class actions, you can help push for social and legislative change by calling or writing letters to your Member of Parliament (MP), the Minister of Health, and the Minister of Environmental and Climate Change.

Releases Under Scrutiny: Protecting the Best Interests of the Class

By: Iman Naqvi

A broad legal release threatens the principle of access to justice in class proceedings. A release prevents the parties in a lawsuit from pursuing further legal action against the other over the same issue – the plaintiff is compensated by the defendant and in exchange, the plaintiff agrees to release the defendant from liability. In a class action, legal releases are more complicated because they affect a large swath of people, most of whom did not have input in the creation of the release or the terms of the settlement. Class members rely on class counsel to look out for their best interests and negotiate settlement terms that will benefit them. When class members are not satisfied with a release or find it unfair, there is only one avenue they can take – to object to the settlement.

Class members are generally uninvolved in the class action process. They rely on class counsel and the representative plaintiff to drive the action forward while providing updates at various stages of the process. Class members have a limited number of rights in a class proceeding. These include the right to notice of certification, the right to opt out of a class proceeding, the right to notice of a proposed settlement, and the right to object to it. Class members in several cases have objected to a settlement over its terms and the scope of the release.

A notable case where a release was brought into question for being too broad is the action against Quiznos Corporation. In 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corporation, franchise owners sued the Quiznos corporation for overcharging for supplies. After a settlement agreement was reached, a class member entered a last-minute objection. The objector took issue with the settlement because class counsel would receive $275,000, while class members received nothing, and the release was too broad. This case is striking because the settlement offered no compensation to the class members, in exchange for a broad release of liability. The proposed release could have been interpreted to prevent all future lawsuits alleging breaches of the franchise agreement but not yet known and which would have affected all franchises, even those outside the specified period. Ultimately, Justice Perell did not approve the settlement because the release was overbroad, and had the potential to insulate the defendant from being sued for future breaches of their agreements.

As class members have the least bargaining power in this process, it is imperative that courts protect the rights of class members. One of the primary goals of class actions is to achieve access to justice. If class members must give up rights in exchange for nothing, has justice been achieved? As the judge in Quiznos put it, “it is one thing for Class Members to not have gained anything by a class action, it is another thing to give up rights as the price for settling the Class Action.” For this reason, releases need to be scrutinized by the courts because of the adverse consequences they could have on class members.

The scope of a release was at the heart of another successful objection.Berg v Canadian Hockey League was one of three class actions against the Canadian Hockey League, alleging injuries due to brain concussions, physical and sexual harassment, and breaches of the Competition Act. The objectors in Berg argued that the proposed release would release the defendants from liability in parallel class actions in Alberta and Quebec. Class counsel argued that the court did not have the authority to examine the release because its scope could be determined later, if and when the defendant seeks to use the release as a shield to litigation. Justice Perell disagreed and stated that it is precisely the role of the court to evaluate a settlement agreement to determine whether it is in the best interests of the class. Ultimately, he rejected the settlement agreement and suggested the parties return with a revised release as class counsel did in Quiznos. The court must safeguard the interests of the class, especially in cases where economic interests might put class counsel at odds with class members.

Class actions are complicated procedures and not everyone will be pleased with a settlement. A settlement agreement can be particularly problematic when class members are giving up rights that go beyond the issues in the statement of claim. As class members have the least amount of bargaining power in a class action, their interests have to be considered the most. Broad releases that shield the defendant from future litigation in exchange for little or no compensation to the class become, in effect, a cheap form of litigation insurance. Careful analysis by the courts is necessary to protect the rights of class members and ensure access to justice is being achieved.

“Compromise and the Compromised: Accessibility in Class Action Settlement Agreements”

By: Ashley Ash & Olivia Pomajba

Access to justice is a pillar of class action litigation. Barriers to meaningful justice can remain, however, even within the class action itself, especially in the settlement claims process.

Class action litigation often ends with a settlement agreement, rather than a trial. It is common for class counsel and defense counsel to work out an agreement between them to settle the litigation – the settlement agreement. The settlement agreement must be approved by a judge who will consider whether the proposed settlement agreement is fair, reasonable, and in the best interest of the class. This agreement outlines the details of the settlement, including the mechanics of the claims protocol, the levels of compensation, and the process for disbursement. A small provision in the settlement agreement can translate into enormous barriers for class members in submitting their claims, especially for class members who belong to vulnerable groups.

As a previous blog noted, class members have little to no practical say in the crafting and execution of a settlement agreement. Nevertheless, class action settlement agreements should be drafted with class members in mind. A recent settlement illustrates how seemingly innocuous requirements can create formidable barriers for class members with intellectual or mental health disabilities.

CPRI

On December 16th, 2016, a class action was certified on behalf of individuals formerly admitted as inpatients at the Child and Parent Resource Institute (“CPRI”) in London, Ontario. The lawsuit alleged that between 1963 and 2011, the inpatients at CPRI suffered harms, including injuries resulting from the wrongful acts of their peers, and that the Province owed a duty to supervise and failed to adequately ensure the safety of class members.

The settlement agreement provided between $3,500 to $45,000 in compensation to eligible class members, depending on the level of abuse sustained at CPRI. The defendant, the government of Ontario, denies the truth of the allegations in the action and disclaims any liability whatsoever.

The barrier to justice faced by some class members is this: the claims administrator in the CPRI case requires that anyone submitting a claim on behalf of a class member without legal capacity has to provide documentation verifying their legal authority. Many class members in the CPRI class action are adults with disabilities. For these class members, this requirement means acquiring a court-approved guardianship order in order to access their CPRI inpatient files. 

The Law of Guardianship

A guardianship order is a court appointment that authorizes a person to act and make personal care decisions on behalf of a mentally incapable adult. The only way to become a guardian of a person is to apply to the court. You must file a guardianship plan form which explains your plan for the incapable person’s care that you must follow. Ontario’s statutory framework for capacity and decision making and guardianship is complex and intricate. At the core are two statutes, the Substitute Decisions Act, 1992, (the “SDA”) and the Health Care Consent Act, 1996. Under the SDA, an assessor or physician must make a finding of incapacity prior to a guardianship being ordered. Legal capacity is defined as a person’s authority under the law to make specific decisions.

There are two fundamental problems with requiring class members to obtain a guardianship order before accessing their health records and submitting a claim under the settlement agreement. First is the issue of costs and delay. Justice Lorne Sossin highlights in his article, Designing Administrative Justice, that guardianship applications brought through the courts can take many months, or years if contested, and are expensive.[1] Importantly, “the costs can be significant and, where the assets of the incapable person are not similarly significant, it may not be practical, cost-effective or proportionate for a person of modest means to apply for guardianship over an incapable person.”[2] Both the time and expense of obtaining a guardianship order will likely prevent a class member in CPRI from participating in the settlement claims process.

Second, there is an ableist critique of guardianship orders. The Law Commission of Ontario defines ableism as viewing people with disabilities as being less worthy of respect and consideration, and less able to participate and contribute to society. In the context of the CPRI Settlement, guardianship orders will have profound consequences for class members with disabilities. Instead of accommodating disability, the guardianship orders remove the right to exercise autonomy and self determination. The removal of the right is rooted in discrimination based on disability. Guardianship orders often result in individuals feeling unheard and disregarded due to invasive legal powers that restrict their ability to make choices on matters about their owns lives.

Less restrictive options than a formal guardianship order were available to the parties in CPRI. The CPRI settlement agreement requires hospital records, held by the government of Ontario, to prove that putative class members attended the institution. Ordinarily, the inpatient records being requested are governed by the Personal Health Information Protection Act,[3] which allows the release of such documents to substitute decision makers (including parents, spouses or siblings of the individual).[4] There is a clear preference in the statutory regime for the use of family and friends as decision makers. Despite the important role played by decision makers, however, there are often few supports and resources available to them. Though some may see the role as a natural fit for a family member, most will carry out this role  without compensation, and not all families have sufficient resources and time to do so. The assumption that families can be readily available for this role is an important one to interrogate; nevertheless, for some families, it is far preferable to a guardianship order.

Critiquing Substitute Decision-Making Mechanisms

Lawyers are quick to recommend substitute decision-making mechanisms. Legal scholars and community advocates have asked that they be considered as a last resort, not the first. Research has indicated that substitute decision-making mechanisms have an adverse impact on the individual for whom decisions are made. This includes social isolation, loss of self-esteem, feelings of inadequacy and incompetency, to name a few. Moreover, once a guardianship order is made, there is usually minimal oversightand accountability of the decision made on behalf of the person. This can lead to misuse of power and abuse. As well, once a guardian is put in place under the legislation, it is difficult to challenge or revoke the appointment. Remedies under the legislation are “costly, complicated and intimidating.”

When engaging with persons with disabilities, practitioners should consider less restrictive options that promote a person’s autonomy. This would be consistent with Canada’s obligations under the Convention on the Rights of Persons with Disabilities (the “CRPD”), which it ratified in 2010. The purpose of the CRPD is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” The CRPD highlights the importance of avoiding paternalism in regards to people with disabilities and respect for their agency and choice.

Less onerous options would also be consistent with the goal of class actions to achieve greater access to justice through the settlement process itself.

Anti-Ableist Claims Administration

Although robust claims administration is needed to ensure the integrity of the settlement, class  members should not be required to sacrifice agency or dignity in order to collect their rightful share of compensation. Assumptions should be avoided about what supports or resources class members may have. Not everyone will have advocates in their corner or family members ready and willing to address potential procedural barriers.

A class member-centered settlement ought to address the specific needs of the class, as well as identify any potential barriers in the settlement claims administration process, and work to reduce them as much as possible. For any settlement involving class members with cognitive or other disabilities, it would be wise to deploy a supportive decision-making lens. A supportive decision-making lens recognizes that instead of making assumptions about capacity or resources that an individual may have, practitioners start by asking what would best support the person with a disability. This kind of exercise requires us to be creative and consider alternatives to legal capacity. In the context of the CPRI settlement, a supportive decision-making approach could include accepting the authority of substitute decision-makers appointed on behalf of class members, per the Health Care Consent Act. Family members appointed as substitute decision-makers would be able to support a class member’s ability to make decisions and find ways to put into action the individual’s preferences and goals.

Settlement agreements represent an end to the class action litigation, a compromise between the parties. This vital point in the litigation should entrench protections for class members, and provide a strong foundation for the administration of settlement claims. The prevalence of settlement agreements in class action litigation creates an even greater importance for an accessible and equitable settlement claims process. Class actions are big, involving sometimes with millions of dollars and thousands of class members. In the end, they are a collection of individual instances of harm. Settlement agreements should offer a holistic, inclusive, and human-centered approach to claims administration in order to uphold both the integrity of class actions and the human dignity of its members.


[1] Lorne Sossin, “Designing Administrative Justice” 34 Windsor Y.B. Access to Just 87.

[2] Ibid at 109.

[3] Personal Health Information Protection Act, SO 2004, c 3, s 5.

[4] Health Care Consent Act, SO 1996, c 2, s 20.

First Dismissal of Class Action for Delay Following Amendment to Ontario’s Class Proceedings Act

By: Bianca Demian

The Ontario Class Proceedings Act (“CPA”) was amended on October 1, 2020 to address issues related to procedural delay in an effort to advance stagnant claims.  As described in a previous blog, the Law Commission of Ontario had recommended additional rules to mitigate the harm of delay on class members who may be negatively impacted by dormant cases, including the potential of lost evidence, as well as to avoid financial or reputational harm that may be experienced by the defendants.  The Ontario government later passed section 29.1, mandatory dismissal for delay, to provide that an action will be dismissed for delay unless the plaintiff has not filed a complete motion record within one year of the commencement of the action, the court has established a timetable for the steps in the litigation or the parties have agreed to a timetable.  On January 14, 2022, Justice Belobaba ruled on the motion to dismiss for delay in Bourque v Insight Productions, following the court’s first hearing of a motion addressing section 29.1.  Justice Belobaba’s remarks, addressed below, suggest that new provisions in the CPA will be interpreted according to their plain and literal meaning.

Background

In Bourque, Justice Belobaba granted the motion and dismissed the proposed class action proceeding for delay.  The proposed class action was commenced on February 21, 2020 and alleged employee misclassification by the defendant group of television production companies.  Pursuant to section 39(2) of the CPA, all class actions commenced before October 1, 2020 are considered to have been commenced on October 1, 2020 for the purposes of the one-year dismissal for delay rule.  In other words, the proposed representative plaintiff, Anna Bourque, was required to serve her motion record for certification by October 1, 2021 to comply with section 29.1, or to have secured a timetable for the litigation. In this case, the plaintiff (a) filed her certification motion record on October 6, 2021, five days late; (b) had not filed a timetable for advancing the proceeding agreed to by the parties; and (c) had no court-approved timetable.  Class counsel noted that during a case management conference of May 8, 2020, the court agreed with the plaintiff that she could serve the certification record “when she can”.  However, Justice Belobaba agreed with the defendant’s statement that no timetable was discussed or established at the case management conference.

Can the Mandatory Dismissal for Delay Provision be Overruled?

Class counsel also argued that the class action should not be dismissed because the CPA “is remedial legislation and should be given ‘a generous, broad, liberal and purposive interpretation’”.  Justice Belobaba, while agreeing with class counsel’s comment about the court’s approach to the CPA, took the position that in order to give effect to a statutory provision intended to promote the timely advancement of class action litigation, the liberal and purposive interpretation of section 29.1 is the one that achieves its intended objective.

Counsel representing the class further relied upon section 12 of the CPA which provides that the court may make any order considered “appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination.”  The court, however, affirmed that section 12 of the CPA cannot override the mandatory provisions of the CPA, including the dismissal for delay requirements pursuant to section 29.1.  

Moreover, the court did not sympathize with the argument that litigation deadlines had been stayed as a result of the pandemic.  Specifically, section 29.1 came into force after the temporary suspension of statutory limitation periods had ended on September 14, 2020. To ensure a fair and expeditious process for both parties, Justice Belobaba reminded class counsel that they must interpret and apply the provision as written.

Impacts of the Decision on Access to Justice for Class Members

While the defendants’ section 29.1 CPA motion dismissing the Bourque claim for delay was successful, Justice Belobaba confirmed that an identical action against the defendants can still be filed and class members may still have the opportunity to prosecute their claim.  However, the fresh claim must be filed with a different representative plaintiff.

The decision in Bourque raises concerns for class members’ ability to obtain access to justice.  The filing of a second, duplicative action creates a financial burden that may ultimately have to be paid by the class.  Additionally, further delays may occur as class counsel attempts to identify another representative plaintiff who meets the requirements pursuant to section 5(1)(e) of the CPA.  On the other hand, putting class counsel on notice that the one-year deadline for filing a timetable or certification motion record is a strict rule may result in fewer delays overall. Whether the court’s interpretation of the dismissal for delay provision achieves the LCO’s and the Legislature’s objectives of promoting efficiency and advancing access to justice requires careful consideration.

The Clinic is available to assist class members in understanding their rights and how current legislation may impact their class action.

2019 Year in Review: Top 5 Class Action Cases Affecting Class Members

By Azra Alagic

Class action case law continues to grow. This month’s blog explores some of the most important Canadian decisions of 2019 due to their impact on present and future class members.

#1 Umbrella Purchasers – Expanding the Class Definition and Cause of Action

In September 2019, the Supreme Court of Canada released its decision in Pioneer Corp v Godfrey  and confirmed that umbrella purchasers have a cause of action under section 36 of the Competition Act. Umbrella purchasers are those people who bought a product (for example, a DVD player) that was the subject of the price-fixing scheme, but from a manufacturer or supplier who was not a part of the conspiracy. The United States has generally rejected the idea that umbrella purchasers can be included as class members within class actions. However, the Supreme Court of Canada agreed with the theory that it might be possible to show umbrella purchasers also overpaid because a price-fixing scheme can raise the price of all DVD players. Whether plaintiffs can prove harm will have to be decided at trial, but the Court’s decision makes it easier to certify large classes of purchasers in price-fixing cases. The focus now will be on discovery and the merits of the case, and less on the certification stage in a price-fixing scheme action.  

#2 Privacy Breaches – What’s the Harm?

Breaches of privacy continue to be of increasing concern not only for individuals who have social media accounts, but also for companies and the information they store digitally. Casino Rama’s data system was hacked in 2016. Customers’ personal information was compromised after the casino refused to pay the hacker’s ransom, who then posted the information online. The casino alerted authorities and the affected customers. They also took steps to take down the information from the internet. The affected customers initiated a class action, but in May 2019, the court denied certification. In Kaplan v Casino Rama, Justice Belobaba emphasized that the hackers, not the company who held the information, were responsible for the breach of confidence and publicity given to private life He noted that their lack of reasonable security measures did not translate to legal liability.  He also found that there was no evidence that any vulnerable party had experienced “fraud or identity theft as a result of the cyber-attack” or “any compensable financial or psychological loss.” As mentioned by commentators, the certification stage has been a challenge for proposed privacy breach class actions, as seen where Justice Belobaba struggled with the commonality for cause of action in Kaplan, where he denied certification on the ground of common issues. Moreover, if no identity theft occurs, what is the actual harm of accessing personal information? As stated by Justice Belobaba, “the fact that there are no provable losses and that the primary culprit, the hacker, is not sued as a defendant makes for a very convoluted class action.”

#3 Overcharging Consumers – Arbitrate or Litigate?

The Supreme Court of Canada’s decision in Telus Communications Inc. v Wellmanconfirmed that business customers are bound by the arbitration clause in their contracts and cannot be included in a class action. Telus’ practice of overcharging in the context of rounding up to the nearest minute on a phone call was not disclosed in their contracts. Telus argued successfully that the business (non-consumer) contracts included an enforceable arbitration clause that precluded certification of a class action on their behalf. Non-consumers cannot fall back on the consumers’ argument that arbitration clauses are not binding. Ultimately, it is up to the legislature to exempt non-consumers from the enforcement of the arbitration agreements. Small businesses and other class members caught by a mandatory arbitration clause may try to pursue group arbitration or class arbitration instead, as some commentators have suggested.  

#4 Forced Mediation – Taking the Action from Canada to the Netherlands

Can Uber require its drivers to arbitrate their disputes in the Netherlands? The Ontario Court of Appeal decided Uber cannot do so in Heller v Uber Technologies IncThe Court held that if Uber drivers are employees under the Employment Standards Act, the arbitration clause violates the Act. Uber drivers were forced to pay a fee up front to be able to make any claim regarding their contract.The clause was held unconscionable due to the imbalance of bargaining power inherent in the standard form contract. The Court in Heller recognized Uber’s contract requirement for an Ontario worker to arbitrate in the Netherlands was unenforceable. As stated by Justice Nordheimer, “In other words, as an Ontario resident he is statutorily entitled to the minimum benefits and protections of Ontario’s laws. He should not be left in a situation where those benefits and protections are set by the laws of another country.”  Uber has appealed the decision to the Supreme Court of Canada, which commentators believe will provide a better understanding to parties who contract on the basis of arbitration clauses.

#5 The Right to Appeal Decisions by Claims Administrators – When Can the Court Intervene?

JW suffered sexual abuse by a nun at a residential school while he would wait in line to take a shower. He brought a claim for compensation in accordance with the Indian Residential Schools Settlement Agreement (IRSSA). However, his claim was rejected by the adjudicator through the Independent Assessment Process (IAP) as there was no evidence that the nun had done the act for a sexual purpose. Although sexual intent was not an explicit part of the test, the internal reviewer affirmed the initial adjudicator. The class member eventually appealed to the Supreme Court of Canada in JW v Canadaasking the Court to find that decisions of IAP adjudicators are subject to judicial review and that the court’s supervisory role includes the power to overturn incorrect interpretations of the settlement agreement. The majority of the Court found that the Court can intervene only in exceptional circumstances, but disagreed as to whether JW’s case raised such exceptional circumstances. Justice Abella, Chief Justice Wagner and Justice Karakatsanis found that they did because the adjudicator failed to apply and implement the terms of the Agreement, as there was no language that indicated the sexual intent of the perpetrator is relevant or required for “any touching”. Justice Côté and Justice Moldaver found that the exceptional circumstance in the case was due to a gap in the agreement, where the Chief Adjudicator of the IRSSA is unable to reopen claims that were wrongly decided, which is in place to ensure consistency of decisions. JW illustrates the importance of protecting class members’ interest at the settlement approval stage to ensure fair outcomes and an ability to review unfair claims decisions.

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Not Quite Child’s Play: Unpacking the Lack of Clarity in Class Actions Involving Minors

By Alexandra Lawrence

There are several distinctions between the various provincial class proceedings statutes, but one commonality is that not one statute in Canada sets out the procedure for when a class member, including the representative plaintiff, is a child. In fact, according to the Canadian Foundation for Children, Youth and the Law, there is little consistency between provinces in terms of how minors are able to participate in judicial proceedings at all.

It is not uncommon for a proposed class to be made up of both adults and individuals under the age of the majority, and yet, courts do not always address the distinction between adult and child class members. For example in Templin v HMQ Ontario, the Court certified on consent an action where the proposed class consisted of the 6200 children who resided at or were inpatients of the Children’s Psychiatric Research Institute (“CPRI”) from 1963 to 2011. Given that the action was certified in 2016, at least a portion of the class was likely under the age of majority on the date of certification. Nevertheless, there was no discussion in the certification decision about whether the child class members should be treated differently from the other class members.

In comparison, in Abdulrahim v Air France, the same court in a settlement approval hearing noted that a number of the class members were minors and that the settlement was approved on their behalf. The court ordered that their settlement money be paid into court, and that this money could be withdrawn once they reached the age of majority.

Neither of these cases required minor class members to be represented by litigation guardians or representatives (adults who have the authority to instruct counsel on behalf of a child litigant), which is typical where children are a party to a proceeding. A judge in a recent Quebec decision, Environnement Jeunesse c. Procureur général du Canada, however, took a very different approach.

In Environnement Jeunesse, Justice Morrison denied the plaintiff’s application for authorization. One of the reasons he cited in his decision for denying authorization was that individuals under the age of 18 could not be members of the class, since the age of majority in Quebec is 18 and a person cannot fully exercise their civil rights before this. The Court had concerns that all minors in Quebec would become class members in this action, and that it would be inappropriate for the plaintiff to impose on all parents the obligation to act to exclude their children from this action, as would be necessary to opt out of the litigation.

Justice Morrison stated that while in previous class actions no distinction was made between class members who were minors and those who were not, in the present action the age of the class members was an important element at the heart of Environnement Jeunesse’s request.

The lack of consistency between courts regarding the treatment of child class members is troubling. Either legislatures, the courts, or both, ought to clarify the roles of class counsel and representative plaintiffs, and when litigation guardians are required. This is necessary particularly in light of the Federal Court’s recent affirmation in Rooke v Canada (Health) that representative plaintiffs in a class proceeding must be represented by a lawyer or satisfy certain special circumstances. If a lawyer is required in all class proceedings, then what is the role of the representative plaintiff, or where the representative plaintiff is a child, their litigation guardian? And more importantly, when is a litigation guardian needed for a class member, if ever?

The role of the litigation guardian of a minor representative plaintiff was clarified in the case of LC v Alberta, an action related to the alleged failure of the Director of Child Welfare in Alberta to comply with the Child Welfare Act concerning apprehended children who had become the subject of a temporary guardianship order. One of the proposed representative plaintiffs was a minor. The Court required that the minor, EMP, be appointed a next friend (also known as a litigation guardian or representative in other parts of Canada) and identified the guardian’s roles in the context of a class proceeding as determining whether EMP should remain in the class proceeding, or if she should be the representative plaintiff. 

In LC, Justice Graesser stated in the certification decision that it is not ideal for a representative plaintiff to be under age and require a litigation guardian. This is likely because the representative plaintiff’s role in a class proceeding is far more involved than the average class member. Most provinces have legislated that a representative plaintiff must meet three criteria: 1) they must fairly and adequately represent the interests of the class; 2) they must produce a plan for the proceeding; and 3) they cannot have a conflict of interest, on the common issues, with the class. The Supreme Court in Western Shopping Centres Inc. v Dutton expanded on these criteria, stating that a court should be satisfied that the representative plaintiff will vigorously and capably prosecute the interests of the class.

If the representative plaintiff’s role is to represent and defend the interests of the class, and a litigation guardian’s role is to make decisions that are in the best interest of the child, then it is redundant to require every minor class member to have a litigation guardian. If children are a part of the class, this should already be in the mind of the representative plaintiff as they make decisions on behalf of the class. While the decision to opt out is an individual one, it is not self-evident that a litigation guardian is needed to make the decision or to effect the opt-out. After all, opting out is usually as straightforward as sending an email or form. Opting out entails none of the traditional litigation rights that are exercised by ordinary litigants such as instructing counsel or directing the litigation; indeed, class members are not parties to the litigation, and have none of the rights of ordinary litigants, as the B.C. and Ontario Courts of Appeal recently affirmed in the Visa Merchant class actions.

Justice Morrison’s decision to deny certification because the action involves children is also inconsistent with Canada’s international legal commitments. Children’s right to participate in judicial proceedings affecting them is provided for in Article 12 of the Convention on the Rights of the Child (the “CRC”). The CRC was ratified in Canada in 1991 and since then has been recognized in Canadian courts. If children have a right to participate in judicial proceedings, it follows that those participatory rights should include class proceedings. Requiring child class members to appoint litigation guardians as a condition of certification creates a significant, perhaps insurmountable, barrier to class actions. More clarity must be provided by legislatures or by courts as to how far children’s participatory rights go in class actions, and the proper role of both class counsel and litigation guardians.

Regulating the Self-Regulated Profession: The Roma Refugee Class Actions

By Karly Lyons

On August 20, 2019 motions to certify three class proceedings for the purpose of settlement came before Justice Perell of the Ontario Superior Court. All three lawsuits were against immigration and refugee lawyers and alleged professional negligence. The claims involved Roma refugee claimants fleeing a far-right organization in Hungary called the Hungarian Guard.  All of the class members had hired either Viktor Serhey Hohots, Joseph Stephen Farkas or Erzsebet Jazi to file their refugee claim and all were denied refugee status. The class members all advanced the following common questions: (1) did the Defendants owe a duty of care to the class; (2) did they breach this duty of care; and (3) did they owe a fiduciary duty? Justice Perell certified the three actions as class proceedings.

Mr. Istvan Horvath is one of the representative plaintiffs. According to the Statement of Claim filed by class counsel Flaherty McCarthy LLP, Mr. Horvath was a Roma refugee claimant who arrived from Canada in 2009. He alleged after one initial meeting with counsel a different individual attended the hearing and was unprepared to adequately proceed. Mr. Horvath alleged that as a result of inadequate legal representation, his refugee claim was rejected one month after his initial Refugee Hearing. Fortunately, he was allowed to remain in Canada on Humanitarian and Compassionate Grounds.

Mr. Horvath’s counsel were officially disciplined by the Law Society of Upper Canada (as it then was) in 2015 for abdicating their professional responsibilities. The other representative plaintiffs in the action also had counsel who were disciplined by the Law Society. The disciplinary decisions led to discussion of the vulnerability of refugee claimants and the need for dedicated counsel. These disciplinary proceedings formed the basis of the causes of action in the class actions.

Class actions against lawyers for professional negligence are unusual but not unprecedented. In Ontario, the first such claim was certified twenty years ago. Just this past month a Calgary judge certified a class action against a lawyer by residential school survivors he previously represented, for negligence and charging excessive fees.

A class proceeding is complex and can involve a confluence of laws and procedures. What began as Immigration and Refugee Board decisions then led to official discipline by a self-regulated profession which in turn led to certified and settled class proceedings. The traumatic individual situation of Mr. Horvath led to a more complex resolution than he likely anticipated. This settlement will also surely raise issues surrounding notice as the certified class consists of Roma refugees, many of whom were deported once their refugee claims were rejected and continue to be displaced elsewhere.

Class proceedings based on a cause of action of professional negligence raise important questions about competency of counsel and self-regulation. When counsel is professionally negligent, disciplinary measures of law societies are triggered. However, when negligence is on a large scale with a population who may be deported as a result of the negligence – does self-regulation still work? Had Mr. Horvath (and others in his community) not been allowed to remain in the country on compassionate and humanitarian grounds, would counsel have been disciplined? Will the class ever be properly compensated given their potential geographical dispersal? Is it a failure of self-regulation that the harm done reached a scale where a class proceeding was the appropriate procedure?

The Roma refugee class proceedings remind us of the importance of competent counsel when dealing with vulnerable individuals. They are also unique applications of the class action device to claims of professional negligence in a self-regulating profession.

Expanding the Reach of Class Actions: Administrative Segregation

By Alexandra Lawrence and Karly Lyons

According to the Canadian Bar Association, there are currently 295 active class actions in the province of Ontario. These proceedings are wide reaching and affect many Canadians in some way – even if they do not know they are class members.

What kinds of class actions are being pursued? The Law Commission of Ontario’s Report “Class Actions: Objectives, Experiences and Reforms” released in July 2019 includes a breakdown by causes of action since 1993. Almost half of the class actions filed in Ontario since 1993 concern the Securities Act, the Competition Act, and product liability. Another sizeable chunk of litigation (around 30%) includes consumer protection, employment/pensions, franchise, insurance, and privacy.

Comparatively few class actions are brought on behalf of historically marginalized groups, but that may be changing. Recently, there has been an increase in less traditional causes of action in class action litigation, with many of these cases having a human rights focus. This litigation will often seek damages under the Canadian Charter of Rights and Freedoms using the violation of a specific Charter right as the cause of action. A specific example of this litigation is in the context of administrative segregation, or what is more commonly known as solitary confinement.

The Canadian Federal Government stipulates that administrative segregation is to be used only for the shortest period of time necessary when there are no other reasonable and safe alternatives. However, since the purpose of administrative segregation is to provide security to inmates, the length of this type of segregation can be indefinite. Disciplinary segregation, on the other hand, is a form of punishment for offences committed at a penitentiary which is time-limited – the segregation may not last more than 30 days for a single offence or more than 45 days for multiple offences. 

The Federal Government has faced repeated criticism and lawsuits over the practice of administrative segregation claiming that the practice is akin to torture. The Supreme Court of Canada recently granted the Federal Government’s request to allow their current administrative segregation policy to remain in place for now, giving the Government more time to enact new legislation. The request came in response to a December 2017 decision from the Ontario Superior Court which declared parts of the legislation governing administrative segregation unconstitutional and gave the Federal Government a year to correct the legislation. The government successfully persuaded the Ontario Court of Appeal on two occasions to grant them an extension.

Administrative segregation class proceedings allege that the government is violating inmates’ section 7, 9, 11, and 12 rights under the Charter when inmates are placed in solitary confinement for prolonged periods of time. A recent example is Reddock v Canada (AG) where the representative plaintiff claimed the Federal Government breached the inmates’ Charter rights in addition to committing systemic negligence when placing inmates in administrative segregation. The representative plaintiff argued that the practice of administrative segregation is physically and psychologically harmful, and because of this placing inmates in administrative segregation for a prolonged period of time is in contravention of the Charter. Ontario Superior Court Justice Paul Perell agreed and granted the plaintiff’s motion for summary judgment on the illegality of administrative segregation practice, finding that “placement in administrative segregation for more than fifteen days causes serious physical and mental harm.” He awarded the class $20 million in damages to be paid directly to class members.

In November, the Ontario Court of Appeal will hear an appeal of Brazeau v Canada (AG) which was also decided by Justice Perell. Similar to Reddock, the representative plaintiffs in Brazeau alleged that by placing mentally ill inmates in administrative segregation, the Federal Government breached class members’ section 7, 9, and 12 rights under the Charter. In response to a summary judgment motion brought by the plaintiff, Justice Perell found that two groups of inmates’ section 7 rights were violated by the Federal Government: first, inmates who were voluntarily placed in administrative segregation for more than 60 days, and; second, inmates who were involuntarily placed in administrative segregation for more than 30 days. Justice Perell also found that the section 12 rights of the above-mentioned sub-classes were also violated.

Justice Perell awarded the class $20 million in damages but instead of directing the compensation to individual class members, he earmarked the money to help boost mental health supports for inmates and correctional facilities. The Federal Government is appealing his decision in part on the basis that he lacks the jurisdiction to order such a remedy.

In addition to Reddock and Brazeau, there are currently two other administrative segregation class actions that are winding their way through the courts – one from British Columbia, one from Quebec. Both Reddock and Brazeau, in addition to these other actions, have held that the enabling legislation of the Corrections and Conditional Release Act and the manner of its operation are contrary to the Charter.

When an individual’s Charter rights are violated, they may be entitled to a damage award under section 24. A class proceeding represents the interests of all members of the class. If the Charter rights of a large group of people have been breached by a defendant’s common practice, it may be possible to obtain a large aggregate damages award for class members. Such damages can be assessed on a class wide basis because it is not always necessary to assess each class member’s circumstances. Rather, a court can award general damages in order to serve a deterrence or vindication function, if not a compensatory one. In Reddock, Justice Perell held that “there is a base level of compensatory harm for the contraventions of the Charter or for systemic negligence,” and accordingly awarded the class compensatory damages. The availability of class-wide damages in these cases makes Charter class actions more attractive to lawyers who must fund the litigation out of their own pockets and are only paid for their work if the case results in a large monetary payment by the defendant.

Administrative segregation is just one of the many human rights and/or Charter oriented class proceedings being brought in courts across Canada. Other examples of these actions include those brought by residential school survivors, such as McLean v Canada, actions against the Federal Government for failing to address climate change, and systemic sexual abuse actions.

Charter-based class actions have been litigated in the past. However, the Charter is being argued in greater numbers in class proceedings and is stretching the traditional categories of litigation as outlined above. Of interest will be the outcome of the Brazeau appeal and if the Ontario Court of Appeal comments on the jurisdiction of judges to dispense aggregate Charter damage awards in ways other than directly to individual class members. As non-traditional categories of Charter class actions arise, courts may in turn begin to develop creative uses of damage awards as a means of using section 24 of the Charter to address systemic issues. Regardless, the Brazeau appeal should prove a significant decision for the future of Charter litigation and other human rights class actions.