Divisional Court Certifies G20 Class Actions

In early August, the Ontario Divisional Court released its decision in Good v Toronto Police Services Board, 2014 ONSC 4583. These proceedings relate to the G20 summit that was held in Toronto in June of 2010. The summit brought world leaders to the city, but also attracted a number of groups conducting demonstrations, some of which became violent. For example, those carrying out the “Black Bloc” tactic partook in actions such as breaking windows and destroying police cars. This was an appeal of Justice Horkins’ decision, 2013 ONSC 3026, to not certify the class proceedings.

In responding to the protests and demonstrations, the police detained groups of people by boxing them in or kettling them. Five of these instances form five of the groups in the proposed class of claimants. The sixth group of individuals are those who were held at a detention centre and assert that they were treated improperly. In short, the claims are that the mass detentions or arrests constituted false imprisonment or arbitrary detention and breached their common law or Charter rights.

The elements for certification are set out in section 5 of the Class Proceedings Act, 1992, SO 1992, c 6 (CPA). To successfully certify a class action, claimants must prove: a cause of action, an identifiable class, that the proposed class has common issues, that a class action is the preferable procedure and that there is a representative plaintiff. Justice Nordheimer, speaking for the Court, held that all the elements are met in this case and certifies two class actions: one for the five kettling locations and one for the detention centre. I hope to discuss the principles arising out of this judgement and how they may impact future class proceedings in Ontario.

The Standard of Review 

While many claimants alter the form of their initial claims in class actions appeals, Justice Nordheimer noted that this practice occurs frequently and seems to be at least implicitly accepted by the Court of Appeal. Curiously, he stated that as appellate courts generally defer on issues of mixed fact and law, if the Court confined their analysis to record available to the Justice Horkins, they “might well have deferred to the decision of the motion judge and dismissed the appeal.” In essence, the Divisional Court has explicitly accepted this practice, allowing future class claimants who may be initially unsuccessful at certifying an action to do the same.

Elements of Certification

Justice Nordheimer quickly disposed of the cause of action requirement, noting that there is no longer a dispute among the parties that the amended statements of claim hold causes of action. However, the respondents in this appeal attacked the definition of the class on several grounds. For instance they argued that words such as “in the vicinity” and “mass detention” made it impossible to determine the scope of the class. The Court rejected these arguments, citing Chief Justice McLachlin of the Supreme Court of Canada in Hollick v Toronto (City), [2001] 3 SCR 158, stating that the requirement is not onerous, but the claimant must show that the “class is not unnecessarily broad.”

Moreover, the Court held that plaintiffs may be pragmatic in defining their proposed class and should be “permitted to model the class definition to streamline and eliminate issues that might otherwise be raised by the defence.” Finally, the respondents argued that the subclasses as presented by the plaintiff are barred by s.5(2) of the CPA. The court did not accept this interpretation of the legislative scheme and held that the five kettling locations should be joined in the same class proceeding as they share the same defendant, a common issue and this facilitates the goals of judicial economy and access to justice. Additionally, Justice Nordheimer held that the detention centre subclass was a stand alone class as it raises its own issues. This ruling thus affirmed the reasoning in Hollick, and provides further guidance to plaintiffs in how to strategically define their proposed class.

Moving to the next requirement, a total of eleven proposed issues were presented, and while some of them were rejected, the Court held that there were in fact common issues. Justice Nordheimer cites Justice Strathy, in Singer v Schering-Plough Canada Inc., 2010 ONSC 42, for a list of applicable principles. Briefly, this requirement is not a “high legal hurdle,” there must be “some basis in evidence” and common issues cannot be overly broad. Speaking specifically to the evidentiary burden, Justice Nordheimer stated that this is not a “heavy burden” and should not “turn the certification hearing into a test of the merits of the proposed class.” In sum, the standard is not that of a balance of probabilities and the Superior Court judge mistakenly conducted a weighing of the parties’ evidence.

To be the preferable procedure, proposed class actions must be examined through the policy goals of: judicial economy, access to justice and behaviour modification. Preferability is also meant to encompass what would be fair, efficient and manageable. Finally, this determination must be made by “looking at the common issues in context, meaning, the importance of the common issues must be taken into account in relation to the claims as a whole.” The Divisional Court overturned the trial judge’s reasoning that a class proceeding would be unwieldy. In sum, judicial economy is met by undertaking a fact finding analysis for the totality of detentions, access to justice is met by allowing those would probably not raise an individual claim to resolve their grievance and the alleged actions of the police raise issues related to the goal of behaviour modification.

Finally, the Court found that given the common issues among the five kettling locations, Ms. Good could be the representative plaintiff for them all. A second individual was accepted as the representative plaintiff for the detention centre class. As such, the appeal was allowed and two class actions were certified.

Conclusion

This case provides a good summary and clarifies some of the applicable principles regarding class action proceedings. While this decision does not mark a significant change in the law regarding the certifications of such actions in Ontario, in my view, it further tips the scales in favour of plaintiffs. The ability to reformulate claims upon appeal and the low bar for defining proposed classes and common issues makes it a challenge for defendants who wish to dispose of claims at the certification stage.