Widening Class Action Certification: Cavanaugh v Grenville Christian College

On 24 February 2014, the Ontario Divisional Court allowed the certification of a class action on the basis that the need to ensure that the plaintiffs received access to justice outweighed the difficulties that their many individual issues could produce for a trial: Cavanaugh v Grenville Christian College, 2014 ONSC 290 [Cavanaugh].

This case is the latest in a body of jurisprudence that is bringing clarity to the proper balancing of considerations that courts should make under the preferability analysis for class action certification—the analysis for whether a case should proceed as a class action or as a series of individual actions.

Dealing with Alleged Abuse as a Class

The plaintiffs in this case are former students of Grenville Christian College, a boarding school located in Brockville. They are alleging that the students at this school were subjected to physical and psychological abuse by the staff. The plaintiffs are seeking damages on several grounds, including breach of fiduciary duty, negligence, assault, battery, and intentional infliction of mental suffering.

Certification Denied

On 23 May 2012, the plaintiffs’ motion for certification of their class action was denied. Justice Perell, a prominent justice in the developing class action jurisprudence, held that the class action should not be certified because he did not consider it to be the “preferable procedure” for the plaintiffs’ claims. In particular, Justice Perell was concerned that the plaintiffs’ case would generate an excess of individual issues that would overwhelm the common issues of the class action. Justice Perell denied the motion for certification.

On 12 December 2013, the Supreme Court of Canada weighed in on the proper framework for the preferability analysis (AIC Limited v Fischer, [2013] 3 SCR 949). The Court emphasized that the preferability analysis must take account of the three principal goals of class proceedings—judicial economy, behavior modification, and access to justice. Further, the Court held that five questions should be asked during the “access to justice” component of the preferability analysis:

1. What are the barriers to justice?
2. What is the potential of the class proceeding to address those barriers?
3. What are the alternatives?
4. To what extent do the alternatives address the barriers to justice?
5. How do the two proceedings compare?

Justice Perell did not have access to the Court’s refinement of the preferability analysis when he denied the motion for certification in 2012, but the Divisional Court was able to take account of this test in its judgment.

No Need to Relitigate Common Issues

The Divisional Court found that Cavanaugh involved a “powerful economic barrier to access to justice” (at para 20). The court offered several justifications for finding that the multiplicity of individual issues should not bar certification of this class action. For example, the court found that the resolution of the common issue regarding whether systemic abuse existed “would move the litigation forward in a significant way” (at para 21). Further, the court found that a class action proceeding would ensure that experts testified only once and that the risk of inconsistent outcomes in individual trials would be eliminated.

The court identified one major error in Justice Perell’s judgment—his finding that some issues determined during the common issues class proceeding would be relitigated in individual trials. The court dismissed this concern as an error in law because section 27 of the Class Proceedings Act, 1992, SO 1992, c 6 (CPA), states that a class actions judgment must set out the common issues.

In this case, the common issues touch on many of the boarding school’s alleged systemic practices and policies relating to its abusive treatment of students. Section 27 of the CPA ensures that these issues would not have to be determined again in individual trials. The court forcefully dispatched Justice Perell’s concern: “the motions judge made a palpable and overriding error in the analysis and decision of the preferable procedure” (at para 25).

Widening the “Access to Justice” Avenue in the Preferability Analysis

This judgment seems to bolster the efficacy of relying on access to justice as an avenue towards class certification. The court seems to be saying that a multiplicity of individual issues should not scuttle a class certification in cases where there are economic barriers to access to justice and where judicial economy could be served by resolving at least some of the common issues.

The court does not draw a line in the sand as to the permitted ratio of common issues to individual issues. This determination will always be highly dependent on the factual context of individual cases, so the lack of a test for determining this ratio in this judgment is not a surprise. For now, it seems that the avenue towards class action certification involving the access to justice component of the preferability analysis has been widened.