Class Actions (Ont) - Certification. Leroux v. Ontario
In Leroux v. Ontario (Ont CA, 2023) the Court of Appeal considered an appeal of a class action certification refusal from the Divisional Court, here regarding SSPSIPDDA applicants. The alleged causes of action were negligence and s.7 Charter.
These quotes address class action certification issues:
 The test for whether a pleading in a proposed class action meets the cause of action requirement in s.5(1)(a) of the CPA, and the test for whether a pleading should be struck under r. 21.01(1)(b) [SS: "to strike out a pleading on the ground that it discloses no reasonable cause of action or defence"] of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for failing to disclose a reasonable cause of action, is the same: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19,  2 S.C.R. 420, at para. 14. The facts asserted in the statement of claim are taken to be true unless patently incapable of proof: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45, at para. 22. The statement of claim is to be read generously: Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC),  1 S.C.R. 441, at p. 451. The question to be answered “is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the plaintiffs’ pleaded claims disclose no reasonable cause of action”: Babstock, at para. 14.. Levac v. James
(4) Remaining Certification Issues
 Ontario argues in the alternative that, if the Divisional Court erred in its conclusion that the appellant’s negligence or s. 7 Charter claims were doomed to fail, the setting aside of the certification order should be upheld because the motion judge erred in his common issues and preferable procedure analysis under ss. 5(1)(c) and 5(1)(d) of the CPA.
 Substantial deference is owed to a motion judge’s certification decision and appellate intervention is only warranted if there is a palpable and overriding error of fact or an error in principle: Fischer v. IG Investment Management Ltd., 2012 ONCA 47, 109 O.R. (3d) 498, at para. 40, aff’d on other grounds, 2013 SCC 69,  3 S.C.R. 949. To certify common issues, there must be “some basis in fact” supporting the conclusion that the proposed issues are common to all class members and their resolution will avoid duplication of fact-finding or legal analysis: Cirillo v. Ontario, 2021 ONCA 353, 486 C.R.R. (2d) 25, at para. 57, leave to appeal refused,  S.C.C.A. No. 296.
 I am satisfied the motion judge did not err, as asserted by Ontario, in concluding there was a factual basis to certify the common issues of (a) whether Ontario owed and breached a duty of care to the class, and (b) whether Ontario breached the class members’ s. 7 right. On the first common issue, I see no error in the motion judge’s conclusion that the question can be determined on a class-wide basis as the available evidence suggests that Ontario has a “singular approach” to administrating DSO waitlists. Similarly, on the second common issue, I see no error in the motion judge’s determination that the record suggests that Ontario subjects the class to a single common course of conduct that may constitute a s. 7 Charter breach.
 Finally, I am satisfied the motion judge did not err in concluding that a class action would be a preferable procedure. The motion judge reasonably exercised his discretion and determined that the resolution of the common issues would promote the objective of access to justice and, even if a substantial number of individual assessments remain, would meaningfully advance the litigation for class members.
In Levac v. James (Ont CA, 2023) the Court of Appeal considered how 'common' issues must be for class action certification purposes:
 IPAC is akin to a systemic policy or practice that is intended to be applied consistently. The fact that there may have been some variation in individual experience does not preclude answering the question in common given the finding that an aseptic technique was always required. In Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, 160 O.R. (3d) 173, the failure to pay employees for working overtime in accordance with the Canada Labour Code, R.S.C. 1985, c. L- 2, was recognized as a breach even though the evidence disclosed that some employees were in fact paid overtime. The court characterized the breach as exposing all class members to the bank’s unlawful overtime pay practices: at paras. 39, 47, 56.. Owsianik v. Equifax Canada Co.
 Similarly, Dr. James’ failure to adhere to the required IPAC standards in all cases exposed his patients to a common risk of harm. Whether this breach led to the infections is a question for the causation analysis. Direct evidence from every Class Member was not required where the plaintiff’s theory, and the trial judge’s findings, were based on other evidence of systemic practices: see e.g., Cavanaugh v. Grenville Christian College, 2021 ONCA 755, 72 E.T.R. (4th) 28, at para. 78 (Cavanaugh (ONCA)).
In Owsianik v. Equifax Canada Co. (Ont CA, 2022) the Court of Appeal considered an appeal (along with two other case released simultaneously) from motion orders below that declined class action certification of privacy claims in a larger class action. The issue was whether credit reporting agencies who had their stored data hacked were liable under the 'intrusion on seclusion' tort doctrine of Jones v Tsige (they weren't).
In these quotes the court considers a part of the certification test [CPA 5(1)(a)] which is the same test used to strike pleadings in a non-class actions [ie. whether the pleadings "disclose() a cause of action"] [under R21.01(1)(b)], how the court addresses purely legal issues that are not firmly established in law, and complications with this approach:
 The proceedings are still at the certification stage. There are no findings of fact, only allegations. The factual allegations are, however, taken as true for the purposes of determining whether Ms. Owsianik has pleaded a proper cause of action for intrusion upon seclusion: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45, at para. 22; Bowman v. Ontario, 2022 ONCA 477, 83 C.C.L.T. (4th) 235, at paras. 25, 38-41.. Cirillo v. Ontario
(i) The test under s. 5(1)(a) of the Class Proceedings Act, 1992
 A court cannot certify a class proceeding unless the prerequisites to certification set down in s. 5(1) of the Act are met. Section 5(1)(a) requires:
The pleadings or the notice of application discloses a cause of action.
 A determination that a plaintiff has or has not pled a cause of action for the purposes of s. 5(1)(a) raises a question of law alone, reviewable on a correctness standard: Bowman, at para. 26.
 Counsel for Ms. Owsianik submits that the requirement in s. 5(1)(a) that the claim “disclose a cause of action” sets a low bar and is not intended to pre-empt novel, or tenuous claims. On the motion, the court must read the pleadings generously, accept as true the facts as pleaded and determine whether, on those facts, it is “plain and obvious” that the plaintiff has no cause of action against the defendant: Imperial Tobacco, at para. 17; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC),  2 S.C.R. 959, at p. 980.
 The test to be applied in deciding whether a claim discloses a cause of action for the purposes of s. 5(1)(a) is the same as the test to be applied on a motion to strike a pleading as disclosing no reasonable cause of action under r. 21.01(1)(b): Babstock, at para. 14. I accept that a claim should only be struck if it is “plain and obvious” that the claim cannot succeed. I also agree that Babstock has not altered that test.
 Babstock is, however, helpful in that it demonstrates the application of the “plain and obvious” criterion in circumstances in which novel legal claims are advanced by plaintiffs. In Babstock, the plaintiffs relied on the doctrine of waiver of tort in support of one of the claims advanced by them. The defendant moved to strike, claiming that the doctrine did not exist in Canadian law and therefore the cause of action based on the doctrine could not succeed.
 In Babstock, at para. 19, Brown J. addressed the application of the “plain and obvious” criterion to a case in which a novel claim is advanced, the viability of which turned exclusively on the application of the law as determined on the motion to the facts as pled by the plaintiff:
Of course, it is not determinative on a motion to strike that the law has not yet recognized the particular claim. The law is not static, and novel claims that might represent an incremental development in the law should be allowed to proceed to trial [citation omitted]. That said, a claim will not survive an application to strike simply because it is novel. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings. This is because such claims present “no legal justification for a protracted and expensive trial” [citation omitted]. If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. In making this determination, it is not uncommon for courts to resolve complex questions of law and policy [citations omitted]. [Emphasis added.] I take the majority in Babstock to recognize that when the validity of a claim turns exclusively on the resolution of a legal question, the court may on a pleadings motion, even if the answer to the legal question is complex, policy-laden and open to some debate, determine the law and apply the law as determined to the facts as pleaded to decide whether “the claim is plainly doomed to fail and should be struck.”
 Babstock is consistent with prior authority from the Supreme Court of Canada. In Nelles v. Ontario, 1989 CanLII 77 (SCC),  2 S.C.R. 170, the plaintiff sued the Crown and the Attorney General of Ontario for malicious prosecution. The defendants brought a pretrial motion to strike the claim on the basis that the Crown and the Attorney General enjoyed absolute immunity from a malicious prosecution lawsuit. The motion judge and a unanimous Court of Appeal accepted that argument. The majority of the Supreme Court reversed, holding that, while the Crown was immune from prosecution, the Attorney General and his agents were not.
 Lamer J., for five of six judges, held, at pp. 176-77, that the immunity of the Crown and the Attorney General was properly determined on a pretrial motion, whether that motion was styled as a motion on a question of law or a motion to strike the claim as not revealing a cause of action. Lamer J. described the immunity issue as raising “a question of law that goes to the root of the action”. In his view, a timely pretrial determination of the legal viability of the malicious prosecution claim against the Attorney General would expedite the proceedings and potentially save unnecessary costs.
 The question of the Attorney General’s immunity from a malicious prosecution lawsuit could hardly be described as “fully settled” law at the time of the Nelles litigation. Five judges, including the motion judge, three judges of this court, and one judge of the Supreme Court of Canada, held the Attorney General had immunity. The five-person majority in the Supreme Court, however, held that the Attorney General did not enjoy immunity from a malicious prosecution lawsuit. As set out in the judgment of Lamer J., the law in other jurisdictions was also unclear and unsettled. Despite the contentious nature of the legal issue, the majority held that it could properly decide that issue on a pretrial pleadings motion. This same approach is reflected in the recent judgment of the Supreme Court of Canada in Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361. There, the court struck a misfeasance in public office claim on the basis that the tort could not be extended to a claim brought by police officers against Crown attorneys in respect of their conduct of a prosecution.
 As catalogued by Brown J. in Babstock, there are several advantages to determining the viability in law of a claim on a pleadings motion when that viability turns exclusively on a question of law and the only material facts relevant to the question are those pled by the plaintiff. Deciding those questions early in the litigation serves judicial efficiency, enhances access to justice, and promotes certainty in the law: Babstock, at paras. 18-21; see also Arora v. Whirlpool Canada LP, 2013 ONCA 657, 118 O.R. (3d) 113, at paras. 90-93, leave to appeal refused,  S.C.C.A. No. 498; Stephen G.A. Pitel & Matthew B. Lerner, “Resolving Questions of Law: A Modern Approach to Rule 21” (2014) 43:3 Adv. Q. 344.
 The effect of leaving legal questions bearing on the viability of a claim unresolved while the claim proceeds through trial is evident from a review of the class action proceedings involving intrusion upon seclusion claims against Database Defendants. Several of those claims have been allowed to move forward, not on the basis that the intrusion upon seclusion claim could actually be made out against the Database Defendant, but rather on the basis that it was not “plain and obvious” the claim could not succeed. Those decisions leave the law unclear and the ultimate viability of the claim uncertain.
 Class proceeding actions in which an intrusion upon seclusion claim is made against Database Defendants have continued to enter the system and continued to be certified on the same basis up to the Divisional Court’s decision in this case. As these cases have slowly wended their way through the system, consuming valuable litigation resources, no one could say with any certainty whether the cause of action asserted in these claims existed as a matter of law. That question would only be answered in the litigation if and when one of the claims actually made it through trial. If a claim actually got that far, the trial judge would be obligated to decide exactly the same legal question that was before the motion judge on the certification motion months, if not years, earlier. And yet the trial judge would be in no better position to resolve that question than the motion judge.
 Not only did allowing these cases to proceed to trial result in uncertainty, that uncertainty arguably resulted in unfairness to Database Defendants. The certification of intrusion upon seclusion claims without a determination that the claim was viable in law gave a plaintiff an advantage in certification proceedings. Because damages for intrusion upon seclusion do not require proof of any actual pecuniary loss, but are instead awarded on a “symbolic” or “moral” basis, damages are well suited to an award on a class-wide basis. The nature of the damages to be awarded offered support for the plaintiff’s argument that a class proceeding was the preferable proceeding for the resolution of common issues: Class Proceedings Act, 1992, s. 5(1)(d). Consequently, the presence of an intrusion upon seclusion claim, despite the uncertainty as to its legal viability, gave plaintiffs a leg up in the certification process and, as a result, in any settlement negotiations: see Winder, at para. 16; Babstock, at para. 21.
In Cirillo v. Ontario (Ont CA, 2021) the Court of Appeal noted the same standard between striking pleadings motions and part of the main class action criterion:
 Section 5(1)(a) of the CPA requires that the pleadings disclose a cause of action. The certification requirement under s. 5(1)(a) is the same as r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The pleadings cannot form the basis of a claim if it is “plain and obvious” that they do not disclose a cause of action.. Bowman v. Ontario
In Bowman v. Ontario (Ont CA, 2022) the Court of Appeal set out basics of the certification of a class action:
IV. GOVERNING LEGAL PRINCIPLES REGARDING CERTIFICATION
 The principles regarding the certification of a class proceeding are well-established:
(i) In Ontario, s. 5 of the CPA contains the criteria for certifying class actions. The CPA should be construed generously in a way that gives full effect to the benefits foreseen by the drafters: Hollick v. Toronto (City), 2001 SCC 68,  3 S.C.R. 158, at paras. 14-15; The standard of review on appeal for each particular certification question depends on the nature of the question: Pioneer Corp., at para. 28. Whether a plaintiff has a cause of action is a question of law reviewable on a standard of correctness: Pioneer Corp., at para. 57. Whether the certification judge has identified the appropriate standard for certifying loss as a common issue is also a question of law: Pioneer Corp., at para. 94. Otherwise, substantial deference is owed to a certification judge’s application of the test for certification and determination of the common issues. On such questions, appellate court intervention should be restricted to matters of general principle: Fehr, at para. 39.
(ii) The onus is on the representative plaintiff to show why the certification criteria have been met;
(iii) The certification stage is decidedly not meant to be a test of the merits of the action. The certification stage focuses on the form of the action. The question is not whether the claim is likely to succeed but whether the suit is appropriately prosecuted as a class action: Hollick, at para. 16; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57,  3 S.C.R. 477, at para. 102.
(iv) The plaintiff must show “some basis in fact” for each of the certification criteria, other than the requirement that the pleadings disclose a cause of action: Hollick, at paras. 25-26; Pioneer Corp. v. Godfrey, 2019 SCC 42,  3 S.C.R. 295, at para. 27; Shah v. LG Chem Ltd., 2018 ONCA 819, 142 O.R. (3d) 721, at para. 22, leave to appeal refused,  S.C.C.A. No. 520; Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, leave to appeal refused, 2019 CanLII 37480 (SCC), at para. 41;
(v) The certification requirement under CPA s. 5(1)(a) – the pleadings or notice of application discloses a cause of action – is the same as the test in r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, under which a party seeks to strike out a pleading on the ground it discloses no reasonable cause of action: Cirillo v. Ontario, 2021 ONCA 353, 486 C.R.R. (2d) 25, at para. 32, leave to appeal refused,  S.C.C.A. No. 296. Accordingly, in assessing whether the representative plaintiff has met s. 5(1)(a)’s criterion, the court must ask whether, taking the pleaded facts to be provable and true, it is “plain and obvious” that the pleading discloses no reasonable cause of action (or cause of action supportable at law), or the claim has no reasonable prospect of success: Hollick, at para. 25; Pioneer Corp., at para. 27; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at para. 14; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45, at paras. 17, 22; and Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24,  2 S.C.R. 261, at para. 4. While the approach must be generous and err on the side of permitting a novel but arguable claim to proceed, at the same time a claim will not survive an application to strike simply because it is novel. If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck: Imperial Tobacco, at para. 21; Atlantic Lottery, at para. 19.