Author: classactionclinic

By Katie Pfaff, MSW, JD.

On March 30, 2022, the Class Action Clinic intervened at the Ontario Court of Appeal in the case of Johnson v Ontario, 2022 ONCA 725. The Clinic advocated for a new test to extend a class member’s time to opt-out after the designated deadline. These submissions were largely accepted by the Court of Appeal. Now, not only do individuals have an opportunity to pursue their own course of justice when they did not get notice of the class action, but class action judges in Ontario have a framework for considering when to grant a class member the opportunity to opt-out after the deadline expires.

The Facts

On August 23, 2016, a class action was certified on behalf of individuals who were incarcerated at the Elgin-Middlesex Detention Centre for alleged negligence and violations of sections 7 and 12 of the Charter against the Province of Ontario for the management of the Centre (the “EMDC Action”). A second class proceeding was commenced to extend the applicable class period; the two actions were then consolidated. The class definition ultimately captures those who were incarcerated at Elgin-Middlesex Detention Centre between January 1, 2010, and May 18, 2017.

Following the EMDC Action’s certification, notice was published in two newspapers in London, Ontario, posted on Class Counsel’s website, and sent to the “last known address of each class member” by mail. In order to opt out and not be included in the class action, a class member had to complete and return a form by June 20, 2018.

Mr. Donald Parker was an inmate at EMDC during the class period and therefore was a member of the class. He sustained significant injuries to his arm in 2016; because he was not given prompt medical treatment, he suffered permanent damage. After he was released from custody in 2019, he began legal action against the Province for compensation caused by the EMDC’s alleged negligence. The Province responded that he could not sue individually as he was bound by the class action. It was at this point that he first learned of the existence of the class action.

Notice of the class action had been sent to Mr. Parker’s last place of residence – his father’s address. Despite the Province being aware that he was in federal custody, notice was not sent to his custodial address. Because Mr. Parker was not aware of the class action, he did not opt out by the deadline. Once made aware of the EMDC Action, Mr. Parker moved to be granted an extended opt-out in order to continue his individual action. His motion was dismissed. There was also speculation that Mr. Parker would not have opted out had he received notice and that the notice “should have come to his attention” (Johnson at para 28). Mr. Parker appealed the decision to the Ontario Court of Appeal.

The Class Proceedings Act, 1992

While nothing in the Class Proceedings Act, 1992 (the “CPA”) specifically governs opt-out procedure in class actions, section 12 gives the court broad discretion to “make any order it considers appropriate respecting the conduct of a proceeding under [the CPA] to ensure its fair and expeditious determination”, which would encompass extending the period to opt out.

The Proposed Test

In February, 2022, the Court of Appeal granted the Clinic intervenor status on the basis that it would “offer a framework, derived from a principled analysis of the role of courts as guardians of related rules, that will focus on the factors that a judge should consider when adjudicating a class member’s motion for an extended opt-out.” Mr. Parker’s counsel argued that the motion judge applied the wrong principles for determining whether to allow Mr. Parker to opt out. The Clinic urged the Court to formulate a general test for extending the deadline in all circumstances.

The test proposed by the Clinic led with an initial review of the adequacy of the original notice plan. Assuming the notice was adequate, the judge would consider two other factors:

1. Did the notice actually reach the class members captured by the action; and
2. Even where notice was received, was there an impediment to a class member making an informed decision whether to remain a member of the class.

It was the Province’s position that if an extended opt-out period was contemplated by the Legislature, such a provision would have been captured by the 2020 amendments to the CPA. The Province also asserted that interpreting section 12 to give judges the authority to extend the opt-out period would fundamentally change the class action regime. The Province expressed concerns over class members taking a “wait and see” approach: waiting until a settlement is proposed before requesting an extended opt-out, which would then make it more difficult to assess the size of the class and for defendants to achieve finality.

The Outcome – The Excusable Neglect/No Prejudice Test

The Ontario Court of Appeal agreed that a framework for determining the extension of opt-out deadlines was needed. Justice Zarnett relied on earlier authorities to create a definitive test:

1. The party seeking an extension to opt out must prove that the entire period of delay, from the missed deadline to opt out through to the making of a request for an extension, was the result of excusable neglect. Excusable neglect is an “elastic concept”. Even in circumstances of carelessness and omissions within a class member’s control, the failure to meet the deadline is excusable  as long as they acted in good faith and had a reasonable basis for not abiding by the opt-out deadline (Johnson at para 40); and
2. A judge must assess whether any prejudice will accrue to participating class members, the defendant, or the integrity of the process, from permitting the late opt-out.

Thus, the new “excusable neglect/no prejudice” test was introduced to the Ontario class action landscape. The intention of this test is to strike a balance between ensuring class members with a justifiable case are given the opportunity to pursue their own litigation while respecting the process of class action proceedings. The Court emphasized the importance of the opt-out right to class members:

“As the intervener aptly puts it, [t]he opt-out mechanism legitimizes a procedure that would otherwise be contrary to basic procedural fairness and principles of natural justice: it is the only way a person can exclude themselves from litigation that affects their rights but over which they have no control.”

Ultimately, Mr. Parker satisfied this new test. He did not receive notice and had a reasonable explanation for the delay in requesting to opt out, and there was no prejudice to any party as no judgment has been made in the EMDC Action, nor has a settlement been reached.

The Clinic is grateful for the opportunity to be involved in the Johnson appeal and will continue to seek to intervene in other appellate cases that implicate the interests of class members across Canada.

By Catherine Yue

On March 3^rd, 2022, when Justice Akbarali approved an honorarium in Redublo v CarePartners, she added yet another chapter to the long-standing debate of whether honorariums are an appropriate element of the class action landscape in Ontario.

What are honorariums and what is their significance?

Every class action has at least one representative plaintiff who must be willing to step forward and be named as the plaintiff in the lawsuit. According to section 5(1)(e) of the Ontario Class Proceedings Act (CPA), a representative plaintiff must fairly and adequately represent the interests of the class, must not have conflicting interests with the other class members on any of the common issues, and must have a workable plan for how the action will proceed.

If the class action is successful, class counsel may recommend that the representative plaintiff receive an honorarium, a monetary reward for the work they have done to advance the litigation on behalf of the class. The judge tasked with approving the settlement ultimately decides if an honorarium should be paid. The reasoning behind the concept of honorariums is directly linked to the fact that representative plaintiffs are unlike other members of the class. They may have experienced the same wrongs as the class but the representative plaintiff is expected to perform additional duties without the anonymity enjoyed by other class members.

In Ontario, the representative plaintiff is the only class member who may be liable to pay the defendant’s legal fees if the action is unsuccessful. Furthermore, the representative plaintiff must subject themselves not just to the defendant’s cross-examination and scrutiny but also to potential media attention. The representative plaintiff is also tasked with additional duties such as reviewing documents produced for the litigation, leading communications with class members and directing class counsel. These are tasks that take considerable time and effort which theoretically could have been spent on income-generating activities instead. Yet, at the conclusion of the class action, the representative plaintiff is not entitled to receive more compensation than the class members – many of whom may only need to fill out a claims form to receive that compensation.

The Ontario courts have recognized the unique burdens of a representative plaintiff and have therefore exercised their discretion to order that honorariums be paid to the representative plaintiff. While payments can be as high as $50,000, Ontario courts have typically awarded between $5000-$10,000.

However, it is important to note that honorariums are not given to all representative plaintiffs and in fact, there is a certain threshold that must be satisfied. Justice Perell stated in Hodge v Neinstein that these monetary awards are only to be given in “exceptional circumstances” where a representative plaintiff has spent considerable effort and time to be actively involved in the litigation while also taking into account any significant hardships they may have experienced due to the case.

The debate around honorariums and their proper threshold

Pursuant to section 5(1) of the CPA, representative plaintiffs have a duty to protect the interests of the class members. According to Justice Perell in Doucet v Winnipeg Ballet, this duty is inherently inconsistent with the concept of being paid. Despite previously approving of honorariums, Justice Perell has decided that he does not believe the practice can continue for the following reasons:

• Honorariums amount to paying the representative plaintiff for legal services which is contrary to the policy of the administration of justice
• Awarding litigants for matters like being a witness is not allowed
• Considering the phenomenon of entrepreneurial class counsel, a representative plaintiff must act as a check and balance and therefore, their instructions cannot be tainted by their own self-interest in receiving benefits which are not received by the class. The potential of collusion with class counsel is greater when individual benefits are involved.
• Awarding honorariums can create repugnant competition and grading of the value of contributions from representative plaintiffs in other actions.

In contrast to Justice Perell, many academics and judges have argued that honorariums are an appropriate acknowledgement of the efforts of the representative plaintiff. Professor Vince Morabito has gone as far as to say that not awarding honorariums is irreconcilable with basic notions of fairness and risks undermining class actions because fewer people will step up to be representative plaintiffs. He further argues that honorariums can incentivize representative plaintiffs to be involved in a meaningful way and therefore act as a check and balance to entrepreneurial law firms. Catherine Piché (now a judge of the Quebec Superior Court) builds on this argument, noting that the quality of participation by the representative plaintiff can directly influence access to justice and the fairness of outcomes in the action.

Further proponents of honorariums can be found in the B.C. Courts which position themselves opposite from Justice Perell. The decision in Parsons v Coast Capital Savings concluded that a representative plaintiff does not need to perform services of special significance beyond their usual responsibilities to receive an honorarium. As long as they have fulfilled their duties in a successful settlement, a modest reward is appropriate, thereby utilizing a “competent” threshold rather than “exceptional”.

Other judges in Ontario have also weighed in. In spite of Justice Perell’s decision, Justice Belobaba subsequently awarded honorariums in Kalra v Mercedes Benz, making no mention of the Doucet case. In Redublo, Justice Akbarali directly addressed and refuted Justice Perell’s arguments. Justice Akbarali ultimately concluded that honorariums should continue because they can directly advance the objectives of the CPA, particularly in terms of upholding access to justice and making sure the representative plaintiff is not unduly prejudiced.

Both Doucet and Redublo are decisions of the Superior Court of Ontario and thus, the law in Ontario remains uncertain with two opposing decisions. This may be the situation that remains until a higher court makes a ruling on the issue. With that said, if the actions of Justices Akbarali and Belobaba are any indication, it seems that the door to honorariums remains askew.

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.

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.

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.

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^[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.

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.

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 Inc. The 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 Canada, asking 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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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.

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.