By Homa Aminnejad, 3L
The Alberta Court of Appeal recently overturned the lower court’s denial of certification in VLM v Dominey, 2022 ABQB 299. The case against the Alberta government and the Synod of the Diocese of Edmonton involves allegations by over a dozen men, accusing the late Anglican priest, Gordon William Dominey, of sexual assaults against youth inmates at the Edmonton Youth Development Centre between 1985 and 1989. This case is significant as the Court of Appeal not only narrowed the application of the “some basis in fact” standard for the preferable procedure criterion but also seems to mandate a minimum “basis in fact” to establish the merits of the claim during certification.
Certification Decision
The certification judge, Henderson J., found that the plaintiff satisfied all certification preconditions except the preferable procedure criterion. Despite acknowledging social and psychological barriers hindering individual actions, he concluded that certification would merely create an “illusion of access to justice.” He found that common issues did not predominate, and that a class proceeding might descend into a series of individual trials extending beyond an assessment of damages.
Appeal Decision
A three-judge panel of the Court of Appeal, however, found that Henderson J. applied an overly rigorous standard when scrutinizing the merits of the claim, and imposed an excessively high burden of proof on the proposed representative plaintiff when he asserted that there was “no basis in fact” that Alberta or the Synod knew or ought to have known of Dominey’s abusive behavior.
The Court underscored that, despite serving as a meaningful gatekeeping function, the certification process does not entail a robust review of the merits of the underlying claim. Instead, it centers on establishing whether there is “some basis in fact” to support a claim—a standard below ‘proof on a balance of probability’—avoiding an exhaustive examination of the merits. Although the statement of claim must plead a recognized cause of action, the Court noted that it is essential to differentiate between the certification process and the summary disposition of the claim. Thus, an incomplete record on certification is to be expected, and parties involved in a certification application should refrain from attempting to prove their case at this stage.
As a result, the question of whether the defendants “knew or ought to have known” of the abuse is a matter reserved for trial, not certification. It is beyond the purview of the certification judge to resolve that issue by concluding that there is no basis to find that Alberta or the Synod “knew or ought to have known” of the abuse.
Notably, the Court found that the plaintiff did provide a sufficient “basis in fact” of the merits of their claim to support a class proceeding. This was grounded in evidence demonstrating that class members were confined in an institution, under the supervision of individuals under the control of the respondents, and subjected to sexual abuse.
The Court then turned to the preferable procedure test, clarifying that its determination is not a factual matter amenable to conventional proof by evidence; instead, it involves legal conclusions based on a comprehensive consideration of the entire case context, including the pleadings, counsel’s submissions, precedent cases, and the experience of certification judges.
The Court found that resolution of the common issues identified by Henderson J. would significantly advance the action. Additionally, the issues deemed individualized by Henderson J. could still be addressed in a class action. It was also noted that, at trial, the judge could establish parameters to assess the claims of individual class members by examining the situations of sample class members for meaningful distinctions.
Furthermore, the Court determined that Henderson J. placed disproportionate emphasis on the potential of class proceedings to conclusively determine the defendants’ liability, while according insufficient weight to access to justice barriers facing the vulnerable class members.
Broader Significance
The certification stage has always been described as focused on the form of the action, not on its merits. The ‘some basis in fact’ evidentiary standard, therefore, is to be applied to the certification criteria (except for the cause of action criterion, which permits no evidence). The Court of Appeal’s conclusion that the plaintiff demonstrated a ‘basis in fact’ for the merits of their claim, however, suggests that plaintiffs must adduce evidence to substantiate the claim during the certification process, despite repeated pronouncements by our highest court that certification is patently not about the merits of an action. Thus, this decision is demonstrative of the ongoing debate surrounding the application of the ‘some basis in fact’ standard and its implications for class actions in Alberta and, more broadly, across Canada.
The decision in Dominey is also significant for future institutional abuse class actions. By rejecting the certification judge’s singular focus on individual plaintiffs, the Court of Appeal underscores the importance of focusing on commonality of experience in order to capture the full scope and magnitude of abuse. The lower court’s narrow approach would have put future claimants at a disadvantage in conveying historical instances of sexual assault within institutions.
