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CIVIL PROCEDURE - Parties - Class or representative actions - Certification

Wednesday, September 20, 2017 @ 8:36 AM  


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Appeal by the defendants from an order certifying the action as a class proceeding. The action arose out of the failure of successive Directors of Child Welfare to comply with the requirements of the Child Welfare Act concerning the preparation and filing of care or service plans for apprehended children who were the subject of temporary guardianship orders. The plaintiffs proposed two classes, namely the Child class and the Relative class. The statement of claim alleged a number of causes of action, including Charter breaches, breach of fiduciary duties, negligence, assault, trespass, and abuse of public office. The case management judge certified the action as a class proceeding. He found that the pleadings properly disclosed reasonable causes of action for Charter breaches, misfeasance in public office, breaches of fiduciary duties, negligence, and unlawful confinement, and that while the pleadings were currently overly broad, proper amendments could address the deficiencies. The judge also found that there were two identifiable classes and common issues relating to the two classes. Lastly, he concluded that a class proceeding was the preferable procedure for the fair and efficient resolution of the common issues. The defendants appealed the certification decision, arguing that the judge erred in law by recognizing novel private law causes of action in a public law context, by failing to perform the required foreseeability and proximity analysis before permitting them to go forward, and by permitting a cause or causes of action to proceed where the statement of claim asserted no factual foundation. The defendants also argued that the judge erred in his findings on the other criteria for certification.

HELD: Appeal allowed in part. Negligence, breach of fiduciary duty, and the appellants’ duty to sue themselves, misfeasance and the s. 7 and s. 9 Charter claims were legal causes of action in the child protection context. While the judge stated the common question relative to the fiduciary duty too broadly, he was correct in concluding it was not plain and obvious that the causes of action could not succeed. The evidence was clear that there were two distinct classes, the Child class and the Relative class. Section 5(b) of the Class Proceedings Act (Act) merely required that there be “an” identifiable class with two or more persons and there was no express prohibition against having more than one class. Moreover, s. 7 of the Act expressly contemplated certification where there was more than one class or subclass. The common issues advanced the action for all class members and were a significant part of each of the class members’ claims. However, to the extent that the case management judge concluded that there were common issues among the members of the child and relative class members outside the period between February 21, 2002 and November 1, 2004, he committed an overriding and palpable error. A class proceeding was the preferable procedure as it presented a fair, efficient and manageable method of determining common issues and it would advance the proceeding, except with respect to the period outside of February 21, 2002 and November 1, 2004. Outside that period, the questions of fact and law affecting individual members of the class would predominate over the common questions to the extent that judicial economy and access to justice would be seriously compromised.

L.C. v. Alberta, [2017] A.J. No. 920, Alberta Court of Appeal, R.L. Berger, J.D.B. McDonald and M.G. Crighton JJ.A., September 7, 2017. Digest No. TLD-Sept182017005