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CIVIL PROCEDURE - Class or representative actions - Certification

Friday, December 04, 2020 @ 6:06 AM  

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Appeal by the Government of Prince Edward Island from a decision certifying the respondents’ action as a class proceeding. The respondents alleged that the Government discriminated against them and proposed class members in its administration of the former Disability Supports Program (DSP) contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms (Charter) because it excluded those with a mental disability due to mental illness from obtaining benefits under the program. In 2018, the Government transformed the DSP into a program called “AccessAbility” Supports which provided supports for individuals with a disability that affected the normal functions of daily living, including disability due to mental illness. The respondents sought Charter damages for discrimination during the 17-year period 2001-2018. P.E.I. did not have class action legislation. The motions judge determined the respondents’ claim disclosed a cause of action, and as the threshold requirements for certification were met, the proceeding was certified as a class proceeding. The motions judge defined the class as all living persons currently or formerly resident of Prince Edward Island between 2001 to the present who suffered from a mental disability. He declared the common issues to be whether the exclusion of P.E.I. residents with mental disabilities from the DSP which violated their s. 15(1) Charter right, whether a violation was justified under s. 1, whether the DSP was protected under s. 15(2) of the Charter and whether Charter damages were an appropriate remedy.

HELD: Appeal allowed in part. The motions judge made no palpable and overriding error in defining the class definition. Limiting the class to persons with a mental disability due to mental illness would eliminate all those persons who might suffer or claim to suffer intellectual impairments resulting from a range of causes. The definition proposed by the Government that required a person to have suffered a mental disability was merit-based and would contradict well-established requirements that the class should be defined in objective terms and that circular definitions referencing the merits of the claim or subjective characteristics ought to be avoided. The motions judge’s definition did not resort to the merits and created the least prejudice to the individuals seeking to be members of the class. It required use of objective criteria to determine membership, was rationally connected to the common issues, and was not overbroad. The common issues did not lack sufficient commonality. The P.E.I. Government’s submission that discrimination claims were inherently difficult to prosecute as a class proceeding was not convincing. This was an appropriate case for common issues to be resolved by a class action. The question of exclusion from the DSP by a mental disability was a common issue to all class members here. It was imperative to respect the bifurcated process and to not confuse the common issues at the first stage with matters that were best left to the determination of any outstanding individual issues at the second stage. The only damages sought were s. 24(1) Charter damages. These damages were entirely unique and provided the court with broad discretion to award damages which were flexible and responsive to the nature of the class, with an eye on the costs and practicalities of the remedy. A class proceeding was the preferred procedure. The Government did not state any alternate procedure that would be more capable of addressing barriers to access to justice. The motions judge erred in setting out a procedural roadmap for the proceeding without affording the parties the opportunity to make submissions. The matter was remitted back for a redetermination to be made upon proper procedure. The motions judge did not err in allowing costs for travel time and accommodation for out-of province counsel on the basis that the experience of plaintiff’s counsel in class actions was both significant and not readily available in this jurisdiction.

Prince Edward Island v. King, [2020] P.E.I.J. No. 43, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., November 3, 2020. Digest No. TLD-November302020010 AOP: Civil Litigation