Focus On

CIVIL PROCEDURE - Class or representative actions - Certification

Wednesday, December 18, 2019 @ 6:26 AM  


Lexis Advance® Quicklaw®
Appeal by Burke from a decision refusing to convert his application for judicial review into an action and to certify it as a class proceeding. Under a 2008 agreement, Canada and the Federation of Newfoundland Indians recognized the Qalipu Mi’kmaq First Nation Band as a Band and its members as status Indians. The 2008 Agreement also created criteria for membership in the Band and an appeal process to rule on decisions of the Enrolment Committee. Canada and the Federation, concerned about the high number who applied for Band membership, amended the membership criteria to make it more difficult to qualify for membership in the Band. They also removed the right to appeal. Because of these changes, the appellant no longer qualified for Band membership. He applied for judicial review of the rejection of his application and the rejection of all others’ applications for Band membership, and then sought to transform his proceeding from an individual proceeding into a class proceeding. His goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court refused to certify the action as a class proceeding on the ground that the class proposed was not ascertainable since the class could be ascertained only after the judicial review was determined. In the Federal Court’s view, it was preferable that the issues raised in the proposed class proceeding be determined through a test case, the Wells case that had been decided on the same date as the application. The Federal Court found that the judicial review was factually similar and raised identical legal issues to those raised in Wells. The Federal Court dismissed the conversion motion on the basis that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied.

HELD: Appeal allowed in part. The action was classified as a class proceeding. The Federal Court erred when it denied the certification motion under Rule 334.16. The Federal Court was wrong to treat its decision in Wells as determinative of the judicial review application and to assume that all the private law claims advanced in the action were premature. Because of these errors, the Federal Court failed to apply the proper test at multiple stages of the certification analysis. The Federal Court’s decision in Wells was only persuasive, not binding, in the Federal Court. The appellant did not consent to his claims being decided in Wells as a lead case and did not have an opportunity to make submissions or present evidence in Wells. The Federal Court should have considered whether the appellant’s pleadings stated a reasonable cause of action. The judicial review, as pleaded, could not be said to be doomed to fail. It was not plain and obvious that the application was barred by res judicata, issue estoppel or abuse of process or did not plead a reasonable cause of action. The Federal Court erred in considering the damages claims to be premature. Public law claims and private law claims could be prosecuted simultaneously. The Federal Court erred in focusing on the merits of the case and the individual circumstances of each class member. The appellant’s proposed class of all individuals whose applications for Qalipu Mi’kmaq First Nation Band membership were rejected in accordance with the 2013 Supplemental Agreement bore a rational connection to the common issues. It was not dependent on the outcome of the litigation. The Federal Court failed to conduct the required analysis of commonality in determining the common issues. The common issues offered by the appellant met the requirement in Rule 334.16(1)(c). In determining whether a class proceeding was the preferable procedure, the Federal Court did not consider the purposes of class proceedings but simply accepted that it would be preferable to advance the class members’ claims through Wells as a lead or test case. The current action was a case where a class proceeding advanced the interests of judicial economy, behaviour modification and access to justice. These objectives were well-served in this case by a class proceeding that would determine important common questions affecting over 80,000 people.

Brake v. Canada (Attorney General), [2019] F.C.J. No. 1254, Federal Court of Appeal, D.W. Stratas, J.B. Laskin JJ.A. and M. Rivoalen A.C.J., November 4, 2019. Digest No. TLD-December162019005