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Class Proceeding (Fed) - Certification - 'Preferrable Procedure'[FCR 334.16(1)(d)]. Voltage Pictures, LLC v. Salna
In Voltage Pictures, LLC v. Salna (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from the dismissal "(for the second time) [of] the appellants’ motion to certify this proposed reverse class proceeding".
Here the court considered the 'preferrable procedure' element of federal class proceedings certification:D. Did the Federal Court err in concluding that a class action is the preferable procedure?
[126] In assessing whether a party seeking certification has established some basis in fact that a class proceeding is the preferable procedure for deciding the common questions, a motions judge is required to assess whether the party seeking certification has established some basis in fact that the proposed class proceeding is a fair, efficient, and manageable method of deciding the common questions and advancing the proceeding and whether it is preferable to other ways of resolving the claim.
[127] The motions judge is required to consider these issues through the prism of the tripartite goals of a class proceeding, namely, access to justice, judicial economy, and behaviour modification: AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949 [Fischer] at paras. 22–23; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at paras. 28–31; Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184 at paras. 35–39; Brake at paras. 85–87; Greenwood at para. 200, Voltage FCA Certification Decision #1 at para. 105; Nasogaluak at para. 16.
[128] As stated in Wenham at paragraph 77:(a) the preferability requirement has two concepts at its core:
(i) first, whether the class proceeding would be a fair, efficient and manageable method of advancing the claim; and
(ii) second, whether the class proceeding would be preferable to other reasonably available means of resolving the claims of class members;
(b) this determination requires an examination of the common issues in their context, taking into account the importance of the common issues in relation to the claim as a whole; and
(c) the preferability requirement can be met even where there are substantial individual issues; the common issues need not predominate over individual issues. ....
[137] A somewhat similar conclusion was recently reached by this Court in Canada v. Stonechild, 2025 FCA 105, where this Court overturned a certification order of the Federal Court largely because the common questions did little to advance the action. Writing for the majority, Justice Rennie stated at paragraph 34:The certification judge failed to consider whether the questions of law or fact common to the class members predominate over any questions affecting only individual members as set out in Rule 334.16(2)(a). As the Ontario Court of Appeal concluded in Bayens v. Kinross Gold Corporation, 2014 ONCA 901 (Bayens), it is difficult to establish preferability where individualized inquiries and fact-finding are both necessary and unavoidable. In that case, the Court found that resolution of such questions did not lend itself to a class action, stating that, “the need for numerous individual inquiries undercuts the goal of judicial economy and could overwhelm the resolution of the common issues, producing an inefficient and unmanageable class proceeding” (Bayens, at para. 129). ....
[142] The preferable procedure analysis in essence asks how far a class proceeding would advance the proceeding by answering the common questions, and how many resources are saved in answering them commonly, as compared to what would happen if the proceeding were not certified and another method to answer the questions were employed: see Brake at paras. 85–86. Courts must adopt a practical cost-benefit approach, which includes a consideration of the impact of a class proceeding on class members, the defendants, and the court: Fischer at para. 21.
[143] Here, as noted, the common questions have minimal importance in relation to the claim as a whole and thus do virtually nothing to advance the claim. I therefore conclude that the Federal Court’s conclusion on preferable procedure cannot stand. . Canada v. Stonechild [preferrability]
In Canada v. Stonechild (Fed CA, 2025) the Federal Court of Appeal allowed a Crown appeal, here from a federal class action certification issue in an indigenous children context.
Here the court considers the 'preferrability' element of the class proceedings test:[2] It is beyond doubt that the objective of class proceedings is to improve access to justice in an efficient and fair manner. Sight must not be lost, however, of the fact that the over-arching objective, one that permeates all elements of the certification criteria, is that of justice. The just adjudication of the issues is not to be sacrificed on the altar of asserted efficiencies, nor is a class action a preferable procedure simply because it has only one defendant. Here, the proposed class action is neither expedient, nor fair, and what was certified was an overly complex and wholly unmanageable proceeding, rife with substantive and procedural problems.
....
[44] A judge assessing the preferability criteria needs to assess, comprehensively, the legal landscape which governs the claim, and the substantive and procedural implications for the proposed claim. At the end of the day, a Federal Court judge hearing this action on the merits would have neither the means nor evidence necessary to assess liability given the absence of requisite defendants and evidence with respect to individual placement decisions. Any declaration granted would be hollow or empty of meaning.
[45] I have considered the argument that the concerns which I have described are premature, and that a better course is to let the class action proceed and run its course until it runs into the jurisdictional limitations which I have described. I see no merit in this argument. It serves no one’s interest- neither that of the parties themselves or the courts, to invest time and expense in litigation that will run, inevitably, into a brick wall. As noted, the problems are not such that they can be cured by the exercise of the motions judge’s discretion. Nor is it possible to rationalize this course of action against the objectives of efficiency and accessibility that underlie class proceedings.
[46] Given that the alleged breach of duty arises from the asserted gap between provincial government policies and the 2019 legislation, the preferable procedure for the adjudication of this claim entails proceedings before courts that can compel the participation of provinces responsible for the administration and delivery of child and family services to off-reserve Indigenous children at discovery and trial. . 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 'preferrability' element of the federal class proceeding certification test:[49] As concerns the fourth criterion for certification, which requires that a class proceeding be the preferable procedure for the just and efficient resolution of the common claims, the Federal Court held that preferability must be examined with reference to the three principal aims of class proceedings, namely, judicial economy, access to justice, and behaviour modification. It held that a class proceeding would not meet the objective of judicial economy given the need for individualized assessment of each offender’s claim. It noted that "“[t]o the extent that there would be any common issues that could be determined on a class-wide basis (such as whether the CRS lacks predictive validity for Indigenous female offenders), such issues are eclipsed by the weight of the individual issues that would remain to be determined”" (Federal Court Reasons at para. 204).
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