No Go: Court Refuses To Certify Class Action Against Newfoundland For Restricting Travel During COVID-19

• Published date: 15 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Class Actions, Trials & Appeals & Compensation, Professional Negligence, Litigation, Contracts and Force Majeure
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor, H. Michael Rosenberg and Leah Strand

Overview

In Koehler v. Newfoundland and Labrador, 2021 NLSC 95, the Supreme Court of Newfoundland and Labrador refused to certify a proposed class action seeking damages for the provincial government's COVID-19 travel restrictions.¹ Justice Boone determined the class action did not meet the requirements for certification under the Class Actions Act.²

Koehler provides important guidance on the certification of claims for Charter damages, particularly in the rapidly developing area of mobility rights. On that score, the decision extends the Court of Appeal for Ontario's recent line of jurisprudence articulating the level of fault that will justify Charter damages.³ Even where fault is alleged, a class proceeding will not be certified on bald pleadings that the government knew it was violating the Charter. More is required, and it was lacking here.

The authors served as co-counsel for the defendant, together with Don Anthony, Q.C. of the Newfoundland and Labrador Department of Justice.

The impugned travel restrictions

After the provincial government declared COVID-19 a public health emergency in March 2020, the Chief Medical Officer of Health made special orders prohibiting travel to Newfoundland and Labrador. The orders included a list of exemptions. Individuals who did not fit within a defined exemption could apply for one.

By the time that certification was argued in Koehler, the court had already considered a different challenge to the same travel restrictions in Taylor v. Newfoundland and Labrador, 2020 NLSC 125.⁴ In Taylor the court held: (a) the statute authorizing the travel restrictions fell within provincial jurisdiction;⁵ (b) the travel restrictions violated the Plaintiff's right to mobility guaranteed by s. 6(1); and (c) the violation was justified under s. 1 of the Charter.

The proposed class action

The Koehlers are Ontario residents who own property and operate a seasonal business in Newfoundland. They planned to travel to the province in the spring of 2020 but cancelled those plans upon hearing about the travel ban. In July, they applied for an exemption, which was granted the following day. Thereafter, they traveled to Newfoundland and operated their business.

The plaintiffs claimed that the government's travel restrictions were negligent and amounted to a nuisance. They also claimed that the travel restrictions violated their Charter rights to peaceful assembly (s. 2(c)), mobility (s. 6), liberty and security of the person (s. 7), and...