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Class Proceeding (Fed) - Certification - General. Canada v. Hirschfield
In Canada v. Hirschfield (Fed CA, 2025) the Federal Court of Appeal allowed an appeal, this from a granted certification decision regarding RCMP officers who both were eligible for a disability pension and civil damages, and to whom Veterans Affairs Canada (VAC) "offset a portion of ... civil damages award against his pension benefits".
Here the court notes the Federal Court class action certification criteria:[49] Rule 334.16(1) of the Federal Courts Rules sets out five conditions that must be met for a proceeding in the Federal Court to be certified as a class proceeding:(1) the pleadings disclose a reasonable cause of action;
(2) there is an identifiable class of more than one person;
(3) the claims raise common questions of fact and law;
(4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions; and
(5) there is an adequate representative plaintiff or applicant. [50] The motion judge found that all five conditions were met, and granted certification accordingly. . Michel v. Canada (Attorney General)
In Michel v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal partially allowed an appeal, here from a denied class action certification motion that resulted when "the Federal Court declined to allow the plaintiffs leave to amend their Third Amended Statement of Claim (the Statement of Claim) and to reapply for certification".
Here the court considers the federal certification test:II. The Federal Court’s Reasons
[32] I turn next to the Federal Court’s findings that are relevant to this appeal.
[33] The Federal Court commenced its analysis by correctly setting out the five requirements for certification of an action as a class proceeding under Rule 334.16 of the Federal Courts Rules, S.O.R./98-106 namely that:. the pleadings disclose a reasonable cause of action;
. there is an identifiable class of two or more persons;
. the claims of the class members raise common questions of law or fact;
. the class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
. there is a representative plaintiff who: (i) would fairly and adequately represent the interests of the class; (ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and notifying the members of its progress; (iii) does not have an interest in conflict with the other class members regarding the common questions of law and fact; and (iv) has provided a summary of the agreement with legal counsel respecting fees and disbursements. . Doan v. Clearview AI Inc.
In Doan v. Clearview AI Inc. (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an order "dismissing her motion to certify the underlying action as a class proceeding pursuant to Rule 334.16(1) of the Federal Courts Rules", finding that the plaintiff "had not established some basis in fact that there is an identifiable class of two or more persons in the proposed proceeding".
Here the court generally sets out the federal class proceedings test:IV. General principles
[11] Rule 334.16(1) sets out five conditions that must be met for a proposed class proceeding in the Federal Court to be certified:(1) the pleadings disclose a reasonable cause of action;
(2) there is an identifiable class of two or more persons;
(3) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(5) there is an adequate representative plaintiff or applicant. [12] The test for certification is conjunctive, meaning all five requirements must be satisfied before the Court will certify an action as a class proceeding: Brink v. Canada, 2024 FCA 43 at para. 138, leave to appeal to SCC refused, 41266 (October 10, 2024), citing Buffalo v. Samson First Nation, 2008 FC 1308 at para. 35, aff’d 2010 FCA 165 at para. 3. As a result, having found that Ms. Doan had not satisfied the requirement for an identifiable class (Rule 334.16(1)(b)), the certification judge did not consider the remaining conditions of Rule 334.16(1). . Brink v. Canada
In Brink v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal from a denial of a Charter s.15 ['discrimination'] class action certification motion, here where the motion judge struck the claim (without leave to amend it) on the basis that no Charter claim was made out on the pleadings. The claim was with respect to immigration process fees charged by the government to "non-Canadian born" individuals.
Here the court endorsed the motion judge in applying 'Occam's Razor' in their legal reasoning, here as a matter of efficiency where one necessary element of a legal test was not made out:X. The Federal Court’s Failure to Address the Other Four Certification Criteria
[137] A motion to certify an action as a class proceeding in the Federal Courts is governed by Rule 334.16(1) of the Federal Courts Rules. This Rule states that a judge shall certify a proceeding as a class proceeding if the following five requirements are met:. the pleadings disclose a reasonable cause of action;
. there is an identifiable class of two or more persons;
. the claims of the class members raise common questions of law or fact (whether or not those common questions predominate over questions affecting only individual members);
. a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
. there is a representative plaintiff or applicant who would fairly and adequately represent the interests of the class. [138] This list is conjunctive: that is, the Court must be satisfied that all five requirements are satisfied in a given case before the Court can certify an action as a class proceeding: Buffalo v. Samson First Nation, 2008 FC 1308 at para. 35, aff’d 2010 FCA 165 at para. 3.
[139] As discussed earlier, the Federal Court found that the appellants’ statement of claim in this case did not disclose a reasonable cause of action. Consequently, the first of the five certification criteria was not satisfied, and it followed that the appellants’ certification motion must necessarily fail.
[140] Having found that the first of the certification criteria had not been satisfied in this case, it was entirely open to the Federal Court to determine that it was unnecessary to consider the remaining four certification criteria. Given that all of the certification requirements had to be satisfied before the action could be certified as a class proceeding, there was nothing that the Federal Court could decide with respect to the four remaining criteria that could have affected the outcome of the certification motion.
[141] That is, the existence of, for example, important common questions of law or a strong litigation plan could not make up for the lack of a reasonable cause of action in the certification process: Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9 at para. 52.
[142] Whether or not to address the remaining outstanding issues in such circumstances was a matter wholly within the discretion of the motions judge. As noted earlier, this Court should not interfere with discretionary decisions of the Federal Court absent an error of law or a palpable and overriding error on a question of fact or of mixed fact and law, and the appellants have not identified a reviewable error in the Federal Court’s exercise of discretion in this regard. . McMillan v. Canada
In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".
Here the court considers class action certification test under the Federal Rules:B. Mr. McMillan’s Certification Motion
[156] Rule 334.16(1) of the Federal Courts Rules governs motions to certify an action as a class proceeding. It provides that a judge shall certify a proceeding as a class proceeding if the following five requirements are met:. the pleadings disclose a reasonable cause of action;
. there is an identifiable class of two or more persons;
. the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
. a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
. there is a representative plaintiff or applicant who would , amongst other things, fairly and adequately represent the interests of the class. [157] Each of these requirements will be addressed below.
....
[160] The list contained in Rule 334.16(1) is conjunctive: that is, all five requirements must be satisfied in a given case before the Court can certify an action as a class proceeding: Samson Cree Nation v. Samson Cree Nation (Chief and Council), 2008 FC 1308 at para. 35, aff’d 2010 FCA 165 at para. 3. . Berenguer v. Sata Internacional - Azores Airlines, S.A.
In Berenguer v. Sata Internacional - Azores Airlines, S.A. (Fed CA, 2023) the Federal Court of Appeal considered the federal class action certification criteria:[82] Rule 334.16 prescribes five criteria that must be met to obtain an order of certification. They are:. The pleadings disclose a reasonable cause of action.
. There is an identifiable class of two or more persons.
. The claims of the class members raise common questions of law or fact.
. A class proceeding is the preferable procedure for the just and efficient resolution of the common questions.
. There is an appropriate representative plaintiff. . Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered basic law of federal class action certification:A. General Principles Regarding Class Action Proceedings
[21] Subsection 334.16(1) of the Federal Courts Rules sets out the five conditions that must be met for a proceeding to be certified as a class proceeding:(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(e) there is a representative plaintiff or applicant who:(i) would fairly and adequately represent the interests of the class,
(ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record. . Canada (Attorney General) v. Nasogaluak
In Canada (Attorney General) v. Nasogaluak (Fed CA, 2023) the Federal Court of Appeal cites class action certification rules from the Federal Court Rules:[9] Rule 334.16(1) of the Federal Courts Rules, S.O.R./98-106, sets out five conditions that must be met for a proceeding in the Federal Court to be certified as a class proceeding:(1) the pleadings disclose a reasonable cause of action;
(2) there is an identifiable class of two or more persons;
(3) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(5) there is an adequate representative plaintiff or applicant. [10] When all five conditions are met, rule 334.16(1) requires that certification be granted: the motion judge "“shall, by order, certify the proceeding as a class proceeding […].”" The motion judge here determined that the first four conditions were met and that the fifth could be addressed through a conditional order. She granted conditional certification accordingly.
....
[18] The first certification condition, that the pleadings disclose a reasonable cause of action, is assessed on the same standard that applies on a motion to strike out a pleading. Thus, the question is whether it is plain and obvious, assuming the facts pleaded to be true (unless they are manifestly incapable of being proven), that the pleaded claims have no reasonable prospect of success: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 14; Canada v. Greenwood, 2021 FCA 186 at para. 91, leave to appeal to S.C.C. refused, 39885 (March 17, 2022). A claim that has no reasonable prospect of success will not satisfy the first condition.
[19] No evidence is admissible on this issue. However, the pleading must be read generously, and as it might reasonably be amended to accommodate inadequacies attributable to drafting. Moreover, recognizing that the law is not static, the motion judge must err on the side of permitting a novel but arguable claim to proceed to trial: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 19-25. This Court has described as "“onerous”" the burden resting on a defendant seeking to defeat a certification motion on the basis that no reasonable cause of action is pleaded: Greenwood at para. 144.
[20] To satisfy each of the remaining four conditions, a plaintiff seeking certification must adduce evidence that provides "“some basis in fact”" for concluding that the condition is met: Greenwood at para. 94, citing Hollick v. Toronto (City), 2001 SCC 68, and Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, among other authorities. This is a threshold lower than the ordinary civil standard of balance of probabilities. But the motion for certification remains "“a meaningful screening device,”" and "“[t]here must be sufficient facts to satisfy the [motion] judge that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage”": Pro-Sys at paras. 101-104.
[21] Whether a pleading discloses a cause of action is a question of law. The standard of appellate review of the motion judge’s decision on the first certification condition is, therefore, correctness: Pioneer Corp. v. Godfrey, 2019 SCC 42 at para. 57; Canada (Attorney General) v. Jost, 2020 FCA 212 at para. 21. On this standard, this Court owes no deference to the court below and is free to substitute the opinion of the motion judge with its own: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.
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