ONTARIO COURT OF APPEAL SUMMARIES (APRIL 4-8, 2016)Good v. Toronto (Police Services Board), 2016 ONCA 250 (CanLII)
[Hoy A.C.J.O., Pardu and Roberts JJ.A.]
Kevin McGivney, Cheryl M. Woodin and Damian Hornich, for the appellant
Eric K. Gillespie, Kent Elson, Kiel Ardal and Priya Vittal, for the respondent
David Morritt and Alexis Beale, for the intervener, Canadian Civil Liberties Association
Keywords: Torts, Police Liability, Arbitrary Arrest and Detention, Civil Procedure, Class Actions, Class Proceedings Act, 1992, section 5, Certification, Costs
The plaintiff/respondent was among the individuals detained at specially constructed Detention Centres during the G20 summit held in Toronto in June, 2010. She commenced a proposed class action against the Toronto Police Services Board (“TPS”) and three other defendants, asserting multiple claims, including a breach of her Charter rights and that of other detainees who would be included in the class.
The motion judge dismissed the plaintiff’s motion for certification, and the plaintiff narrowed her proposed class proceeding before appealing to the Divisional Court. The Divisional Court allowed the appeal and certified the narrowed claim as two separate class proceedings. It also awarded the plaintiff costs of the original certification in the amount of $125,728.03, which was reduced from the costs sought to reflect the time that was spent on the unsuccessful aspects of the claim as originally advanced.
TPS appealed the order of the Divisional Court certifying the two proceedings, and the plaintiff sought leave to cross-appeal the costs awarded by the Divisional Court.
TPS argued that in certifying the action the Divisional Court made the following errors:
(1) It improperly conducted a de novo review of the issue of whether the requirements of s. 5(1) of the Class Proceedings Act, 1992 had been met, rather than applying an appellate standard of review to the motion judge’s determination that they had not met those requirements.
(2) It erred in concluding that the plaintiff had met the s. 5(1)(b) identifiable class criterion.
(3) It erred in identifying the following as common issues, when they are not:
Did each mass detention and/or arrest (or the prolonged duration thereof) constitute (a) false imprisonment of the respective subclass members at common law and/or (b) arbitrary detention or imprisonment contrary to s. 9 of the Charter, including a determination of whether the mass detentions and/or arrests are justified under s. 1?
If TPS breached the class members’ common law or Charterrights, can the court make an aggregate assessment of damages as part of the common issues trial?
iii. Was TPS guilty of conduct that justifies an award of punitive damages?
(4) It erred in concluding that a class proceeding would be the preferable procedure for the resolution of the common issues.
(5) It certified two class proceedings in the absence of discrete Statements of Claim for each.
The Plaintiff seeks leave to cross-appeal the Divisional Court’s cost award.
Holding: Appeal dismissed. Cross-appeal allowed.
TPS’ Appeal of Certification
(1) The court found that the Divisional Court’s intervention was valid because the proposed class action on appeal was significantly narrower than the proposed class action considered by the motion judge. Where the Divisional Court reversed determinations made by the motion judge, it was justified in doing so because of the narrowed scope of the proposed class proceeding. In addition, the court found the motion judge made errors in principle that had no significance on the certification motion, but became significant in the context of the proposed class action on appeal.
(2) The court did not give effect to any of TPS’ arguments. It found that the Divisional Court correctly found “the commonality of an alleged command order being made ordering the detention of the class members without regard for the individual characteristics or conduct of each class member.” In addition, the court agreed that the combination of classes in a single proceeding is not prohibited. It also rejected TPS’ argument that the motion judge correctly concluded that the location-based subclass definitions should exclude individuals who engaged in unlawful conduct during the protests. Instead, it agreed with the Divisional Court that it is of no consequence whether any member of the class did commit a criminal offence or a breach of the peace, because the police cannot justify detaining a person based on information they either did not have, or did not rely on, in ordering a person’s detention.
(3) No. With regard to false imprisonment, it agreed with the Divisional Court’s analysis that the motion judge’s conclusion that the issue was not a common issue was rooted in her focus on the extent of varying individual conduct by the detained or arrested individuals, which was an error in principle in the context of the class as cast on appeal. With regard to the aggregate assessment of damages, the court agreed that this should be open to the common issues judge to consider whether it would be an appropriate remedy.
As for punitive damages, the court did not find the Divisional Court erred in its conclusion that, in this case, it is a proper common issue. Here, the common issues dealing with alleged breaches of the class members’ rights contemplate that liability will be determined at the common issues trial. The common issue proposed, and certified, is only whether TPS’ conduct justifies an award of punitive damages. The court held if liability were found, and at least part of the compensatory damages were assessed on an aggregate basis, it would be open to the trial judge to consider whether she had a sufficient measure of the compensatory damages to determine entitlement to and the quantum of punitive damages, consistent with the principles in Whiten, or whether this could be determined only after any individual assessment phase.
(4) The court agreed with the Divisional Court that a class proceeding is the preferable procedure for the resolution of the common issues and with its reasons for so concluding. Since the Divisional Court correctly concluded both that the plaintiff had satisfied the identifiable class criterion in s. 5(1)(b) of the Act and that the core allegation in the action was indeed a common issue, these conclusions radically altered the landscape in which the preferability analysis was conducted.
(5) The court rejected the TPS’ argument that the Divisional Court’s certification of the plaintiff’s claim as two separate proceedings in the absence of discrete statements of claim was procedurally unfair because it deprived TPS of the ability to make submissions on the certification test with reference to a pleading. It found there was no procedural unfairness and TPS’ ability to make submissions on the certification test was unaffected by the absence of separate pleadings.
Plaintiff’s Cross-Appeal of Costs Award
The court granted leave to the plaintiff to cross-appeal the Divisional Court’s cost award, allowed the cross-appeal and awarded the plaintiff costs of the certification motion in the all-inclusive amount of $315,000. It agreed that a reduction in the costs sought by the plaintiff was warranted to reflect the change in the scope of the plaintiff’s claim. However, the Divisional Court erred in principle in two respects in arriving at its costs disposition. First, in determining the quantum of the award, the Divisional Court relied on inapplicable benchmarks. Second, it failed to consider the impact of its costs award on access to justice.
On the first issue, it noted that the Divisional Court focused on the fact that TPS sought costs on the certification motion in the amount of $393,233.37, and was only awarded $223,233.37 in costs. It was an error in principle to use those amounts as a benchmark. Public interest is a factor to be considered in fixing costs of class proceedings. The motion judge tempered the costs she awarded to TPS to reflect access to justice concerns. However, such a reduction was similarly not appropriate when awarding costs of a certification motion to a successful plaintiff. On the second issue, it accepted the plaintiff’s submission that, left untouched, the Divisional Court’s costs award would have a chilling effect on public interest class actions and would substantially hinder access to justice.
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