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CIVIL PROCEDURE - Class or representative actions - Certification

Friday, December 07, 2018 @ 8:40 AM  


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Appeal by Wenham from a decision dismissing his motion to certify an application for judicial review as a class proceeding. The judicial review application sought to quash a compensation program established by the Government of Canada for victims of Thalidomide. The appellant, a Thalidomide victim, sought to challenge the documentary proof requirements for qualifying for compensation under program. Many applicants, including the appellant, were rejected because they failed to satisfy the documentary proof requirements. The appellant argued that the eligibility and documentary proof requirements and the resulting rejections of applications for benefits were unreasonable in the administrative law sense.

HELD: Appeal allowed. The Federal Court erred in finding that the appellant had not satisfied all the certification requirements. In determining whether a reasonable cause of action existed, the Federal Court made a preliminary assessment of the strength of the proposed class proceeding. The test, however, was whether a cause of action had been pleaded that was not plain and obvious to fail. The accepted test for individuals seeking an extension of time to bring an application for judicial review under s. 18.1(2) of the Federal Courts Act must be re-modeled for class proceedings. In this case, the evidentiary record before the Court on this certification motion did not preclude the granting of an extension of time. It could thus not be said that it was plain and obvious that the application could not succeed. The Federal Court erred in concluding that the application was not justiciable. The challenge in this case was to the reasonableness of a decision to limit the availability of benefits to a particular group of claimants and to narrow the evidence that would be considered. These were very much matters that courts in their judicial review role could assess. The Federal Court’s requirement of sufficient connection of potential class members to the appellant’s circumstances was unknown to class actions law. The requirement of some basis in fact supporting an objective class definition that had a rational connection to the common issues and that was not dependent on the outcome of the litigation was satisfied in this case. The Federal Court also erred in its consideration of the proposed common issues. The common issues in this case were necessary, substantial components to the resolution of each class member’s claim. The potential for more just and effective remedial outcomes favoured a class proceeding over a test case. Refusing to certify a litigation plan because of one alleged weakness was an error in law.

Wenham v. Canada (Attorney General), [2018] F.C.J. No. 1088, Federal Court of Appeal, D.W. Stratas, D.G. Near JJ.A. and J.M. Woods A.C.J., November 1, 2018. Digest No. TLD-December32018009