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Wednesday, April 26, 2017 @ 8:27 AM  

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Appeal by Capital District Health Authority (Authority) of a motions judge’s decision to certify a class proceeding against the Authority. The Authority operated a hospital that cared for patients who had been found unfit to stand trial or not criminally responsible. The hospital’s staff accumulated information that patients had accessed illicit drugs and conducted strip searches of 33 patients in hospital, one of whom was the respondent, Murray. Murray had applied for certification of a class proceeding on behalf of the strip-searched patients against the Authority. The claims related to a breach of s. 8 of the Canadian Charter of Rights and Freedoms and the tort of intrusion upon seclusion. A motions judge certified the proceeding. The Authority appealed, arguing the judge erred in determining that there were common issues and that a class proceeding would be the preferable procedure. The Authority asked that the motion for certification be dismissed.

HELD: Appeal allowed in part. The motions judge did not err by certifying the common issues for the Charter claim. The evidence for the plaintiffs’ factual premise provided “some basis in fact” for the premise that there was one blanket decision leading to the 33 searches. The conclusion satisfied the class plaintiffs’ onus for commonality on the certification motion. Whether or not there was one blanket decision, leading to 33 searches, was for the trial judge to determine at the common issues trial. The class plaintiffs’ proposed theory operated on two premises, one factual and the other mainly legal: (1) there was one decision, without individual assessments, that all the individuals would be searched; and (2) s. 8 of the Charter required that an individual assessment of grounds be made for each person to be strip searched. Each premise generated a common issue. The common determination of the two premises would avoid duplication of fact-finding or legal analysis. The same witnesses would not have to testify 33 times on the factual issue. The judge would not have to make multiple rulings on the legal issue. Those were substantial common ingredients whose resolution would serve the objectives of the Class Proceedings Act by promoting judicial economy. However, the motions judge’s phrasing of two questions relating to the Charter claim was problematic and characterized as errors of principle. One of the questions was required to be re-phrased and two of the other questions were required to be deleted as unnecessary. With respect to common issues for the tort claim, it was an exceptional situation where the existence of the tort and, if it existed, the legal elements and exceptions of the novel tort were actively disputed. As the same dispute applied to the claim of each class plaintiff, all parties would benefit from the scale economies of a single ruling. Although one question was rephrased and the other deleted, it would be dealt with in the individual stage of the proceeding. With respect to whether a class proceeding was the preferable procedure, a trial of common issues would not defeat the purpose of the class proceedings legislation, and a trial of individual issues would not be burdensome.

Capital District Health Authority (c.o.b. East Coast Forensic Hospital) v. Murray, [2017] N.S.J. No. 117, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., J.E. Fichaud and P. Bryson JJ.A., April 13, 2017. TLD-Apr242017008