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Civil Litigation - Civil procedure - Class actions - Certification - Common interests and issues - Definition of class - Procedure - Representative plaintiff

Thursday, December 08, 2016 @ 7:00 PM  


Appeal by the plaintiffs, Pederson and McInnes, from a chambers judgment denying certification of their proposed class action against the defendants, the Minister of Social Services and the Public Guardian and Trustee. The plaintiffs’ proposed action alleged a failure by the defendants to seek civil remedies on behalf of children in foster care who suffered personal injuries in criminal or tortious incidents. The plaintiffs alleged the defendants breached statutory, fiduciary and common law duties to protect the legal rights of class members. The chambers judge found that the action was predicated on the notion class members reported actionable harm but the defendants failed to facilitate prosecution of any civil remedies in response, resulting in the claims being barred by limitation periods or past the date for seeking statutory compensation. The chambers judge accordingly found no genuine cause of action. In addition, the judge ruled that the proposed class was overly broad and lacked sufficient evidentiary foundation. The judge found that neither appellant was a suitable representative plaintiff. The application for certification was dismissed. The plaintiffs appealed and sought to tender fresh evidence of an additional proposed representative plaintiff.

HELD: Appeal allowed. The chambers judge made a number of errors in analyzing whether the claim established a genuine cause of action. The judge improperly narrowed the analysis to focus on the inability to sue for abuse due to limitation periods, representing a premature decision on the merits of the claim. In addition, the judge improperly narrowed the plaintiffs’ claim to one involving missed limitation periods or compensation filing dates, as the causes of action alleged were not wholly dependent upon the effect of such deadlines, and were not necessarily dependent upon contemporaneous reporting by class members. The claim set out a plausible basis for an authentic cause of action. The erroneous approach by the chambers judge also tainted the analysis regarding the existence of an identifiable class and the suitability of the appellants as representative plaintiffs. The chambers judge further erred in finding certification of a common issue regarding punitive damages was not possible until determination of liability and compensation of individual class members. The matter was remitted to the chambers judge to determine the appropriate formulation of the identifiable class. Subject to this aspect and the bifurcation of the punitive damages issue, the action was certified in accordance with the Court’s decision. The attempt to add a new representative plaintiff on appeal was a misuse of the fresh evidence process, as the evidence had no relation to the existing representative plaintiffs. Nothing prevented the plaintiffs from applying for addition or substitution of a representative plaintiff when the matter was remitted to the certification judge.