"This Creature Called Conditional Certification": Ontario Court Of Appeal Overturns Certification In Veterans' Proposed Class Action

• Published date: 03 June 2025
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor, Marina Sampson and Cole Pizzo

In Knisley v. Canada (Attorney General), 2025 ONCA 185, the Ontario Court of Appeal overturned the motion judge's conditional certification of a class action.

In its decision, the Court of Appeal provides helpful guidance to litigants on the extent to which motion judges can fashion certification orders that attempt to overcome substantive deficiencies in a plaintiff's class definition. Knisley confirms that the court must either find that all of the necessary certification criteria are met, or decline to certify the proceeding as a class action.

Background

This case concerns a class action brought by Canadian veterans over systemic delays in the administration and delivery of disability benefits by Veterans Affairs Canada.

The proposed representative plaintiff, Andrew Knisley, served as a member of the Canadian Armed Forces infantry. Active members and veterans of the Armed Forces may be entitled to financial support and compensation for the impacts of disabilities sustained while in service. These disability programs are delivered and administered by Veterans Affairs Canada.

In 2009, Mr. Knisley was seriously injured by an improvised explosive device while serving in Afghanistan. As a result of the explosion, he lost his entire right leg, and suffered multiple other injuries including a traumatic brain injury, hearing loss, and nerve damage. He returned from his deployment only to encounter significant delays and administrative hurdles while attempting to access disability benefits offered by Veterans Affairs Canada.

There are no legislated timelines for the resolution of an application for benefits offered by Veterans Affairs Canada. However, Veterans Affairs Canada has adopted "Service Standards", which...