The Second Opinion: Ontario Court Of Appeal Rejects 'Conditional' Certification Of Class Actions

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP.

The Ontario Court of Appeal has released a new ruling which holds that motion judges do not have jurisdiction to “conditionally” certify class actions that fail to disclose a cause of action under s. 5(1)(a) of the Ontario Class Proceedings Act (“CPA“).

The decision in Brown v. Canada (A.G.), 2013 ONCA 18 concerns a proposed class action against the federal government, which alleges that it wrongfully delegated its duties in respect of Aboriginal persons by entering into an agreement (the “1965 Agreement”) that enabled the province of Ontario to place thousands of Aboriginal children in non-aboriginal foster care or adoptive homes. The plaintiffs alleged that these children were deprived of their Aboriginal identity, and alleged liability based on honour of the Crown, “identity genocide”, breach of Aboriginal rights, breach of fiduciary duty and negligence.

At the certification motion, the motion judge found the pleadings failed to disclose a cause of action as required under s. 5(1)(a) of the CPA. However, despite holding that the fiduciary duty and negligence claims did not support a cause of action based on the federal Crown's entry into the 1965 Agreement - which was the claim pleaded by the plaintiffs - the motion judge went on to find that these claims could potentially support a cause of action based on the Crown's failure to prevent the Aboriginal children from losing their Aboriginal identity. Accordingly, upon finding that the proposed class action satisfied the remaining criteria under s. 5(1) of the CPA, the motion judge granted certification on the condition that the plaintiffs deliver an amended statement of claim.

The motion judge's decision was set aside by the Ontario Divisional Court. In a brief endorsement, it found that he predetermined that a cause of action would be disclosed if the pleadings were amended in accordance with his reasons, and erred by not adjourning the certification motion to await an amended statement of claim which could be challenged anew by the Crown. Remarkably, the Court also ordered that the adjourned certification motion be heard by a different motion judge once an amended pleading was delivered, despite the fact that s. 34 of the CPA requires that “[t]he same judge shall hear all motions before the trial of the common issues” unless that judge “becomes unavailable for any reason”.

In Brown, the Ontario...