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 The court ordered that their settlement money be paid into court, and that this money could be withdrawn once they reached the age of majority.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.