Civil procedure

11. Specialized Litigation

TOPICS

Class Proceedings

Constitutional Challenges

Constitutional Damage Awards

Class Actions

What are Class Actions?

• 
  Starts as a single action where one or more Ps are suing one or more Ds
  
• 
  At some stage, lawyers will make an application to court under the Class Proceeding Act to have their single law suit certified as a class action
  
• 
  Certification is a threshold question, which must be resolved before the action can proceed
  

What are the goals/advantages of class actions? (Hollick v Toronto)

1. 
   Offers greater Access to Justice
   

• 
  Litigation is very expensive, it helps to have multiple parties
  
• 
  Provides access to the courts for smaller claims; or even to spare the embarrassment of being the single claim in a big lawsuit
  

2. 
   Judicial efficiency/economy
   

• 
  Similar to A2J, time spent in the courtroom is a highly scarce resource
  
• 
  By allowing CA to exist, we prevent the over-abundance of proceedings in the same subject matter and avoid unnecessary duplication of fact-finding & legal analysis
  
• 
  Avoiding the embarrassment that can arise, when the same matters are decided differently by different judges
  

3. 
   Behaviour Modification
   

• 
  Can be very important from a public policy perspective
  
• 
  Corporations cannot be regulated, but can scare firms into deterrence so they don’t have to pay large amounts of money in the situation they lose a huge lawsuit
  

Advantage of mass tort actions:

1. 
   Should be to deter the wrongdoings of corporations that affects a large number of people where the injury could be major (ex – a manufacturer that makes toy that are harmful to kids)
   
2. 
   Create the economy of scale. The defendants only have to invest in one litigation strategy to defend against same claim over and over again in single claims; but if you incentivize the plaintiffs to join the claims together in a class action, this evens the playing field;
   
3. 
   These corporations sometimes cannot be regulated, but can scare the firms into deterrence so they don’t have to pay large amounts of money. Mass tort actions to vindicate the public interest in safer products on the incentive that if they’re successful the reward to the lawyers are considerable
   

Class Proceeding Act

p.69 - 72

Section 4(1)

(a) Pleadings must state a cause of action

 same test as a motion of strike (low hurdle)

 if pleadings they can be true, establish a legally known cause of action

2. 
   Identifiable class of 2 or more persons that could represent Ps
   
3. 
   Do the claims of class members raise common issues? Whether or not those common issues predominate over the individual plaintiff
   

 Plaintiffs don’t have to have exact same identical circumstances

2. 
   Whether or not a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues
   
3. 
   There is a representative P who:
   

1. 
   would fairly and adequately represent the interests of the class,
   
2. 
   has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and
   
3. 
   does not have, on the common issues, an interest that is in conflict with the interests of other class members.
   

Section 4-2

In determining whether class actions are preferable procedure – 5 considerations:

1. 
   Fact or law common to the parties predominant over issues effecting just individual members
   
2. 
   Where a significant amount of members have a valid interest in adjudicating separate action
   
3. 
   Where other means are less practicable or efficient
   
4. 
   Either individual plaintiffs bringing their own claims or a combined claim
   
5. 
   Party prosecution policy perspective you will never talk to the lawyer who does this case, if they succeed you get a portion of it but you have no control over the case
   

Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534

[There are times where individual discovery is required of all class member, but it is the exception NOT the rule]

FACTS
COA said that the defendants were entitled to an examination for discover of each member of the proposed class in the suit. It would better enable defendants to fully investigate the factors which they believed had lead to the conclusion that there are different issues of law/fact for the plaintiffs
ISSUE
Should individualized discovery be granted at certification? NO.
ANALYSIS

McLachlin: Allowing individualized discovery at this stage would be premature, discovery of class reps will usually suffice – don’t need individualized members. Although there might be a time where this could be warranted

Hollick v. Toronto (City), [2001] 3 S.C.R. 158

[advantages of class actions – A2J, judicial economy, behavior modificiation]

FACTS

Class was “all people who live within a certain quadrant of a neighbouring landfill”

ISSUE
Does this meet the requirements for class?
ANAYSIS

McLachlin:

“Class actions provide three important advantages over a multiplicity of individual suits:

1. 
   First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis.
   
2. 
   Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own.
   
3. 
   Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public . . .
   

In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters
SUMMARY

In Hollick, SCC directed lower courts to refrain from taking an overly restrictive approach to the CPA, particularly at the certification stage. SCC urged lower courts to construe the CPA generously so as to give full effect to its intended benefits: judicial economy, access to justice, and behaviour modification.

In so doing, SCC gave effect to the legislative history and intent of the legislation. In particular, SCC recognized the CPA was adopted to ensure the courts had a procedural tool for dealing efficiently, and on a principled rather than ad hoc basis, with increasingly complicated cases.

Rumley v. British Columbia, [2001] 3 S.C.R. 184

[Plaintiffs in a class need to have questions of fact/law in common – s.4(1)(c) of CPA]

FACTS
Class action brought by a group of former residential school students. The appeal court defined the class as “students at the Jericho Hill School between 1950 and 1992 who reside in British Columbia and claim to have suffered injury, loss or damage as a result of misconduct of a sexual nature occurring at the school.” The BC gov appealed that decision to SCC
ANALYSIS

• 
  Supreme Court of Canada held that the plaintiffs constitute a class because they had questions of fact or law in common, principally whether the Gov owed them a duty of care, and whether the standard of care had been breached.
  
• 
  The Court was persuaded that the Gov owed the students a duty of care. The Court also held that it would be preferable to adjudicate this matter with a CLASS of plaintiffs, despite the gov’s argument that the standard of care of students at residential schools may have changed between 1950 and 1992.
  
• 
  With this decision, SCC showed a willingness to certify class actions where many plaintiffs suffered over an extended period of time, during which standards of care may have changed.
  

Constitutional Litigation

Everything that applies to a normal litigation would apply to constitutional litigation.
But how is it different than civil litigation?

• 
  Key difference is = ramifications of constitutional judgment are far-reaching and wide spread
  
  • 
    Constitutional litigation can affect the rights of ALL Canadians
    
  • 
    Linked to the concept of public interest
    
  • 
    Decision-making around constitutional law & development of it has to be infused tiwh a sense of public good/interest
    

VS

• 
  Whether a particular tort claims wins/loses doesn't really affect anyone else
  
  • 
    Doesn't really create precedent; not really biding unless the exact same facts
    

Remedies under Constitution

• 
  Charter breach and remedy for individual  s.24(1)
  
• 
  Allows Court to exclude evidence if it is gathered contrary to the Charter  s.24(2)
  
  • 
    Purpose of 24(2) doesn’t have much to do with the individual rights
    
  • 
    But more so about protecting the Court from falling into the disrepute of the admin of justice
    
• 
  Provides for a basis for Court to strike down any law that is unconstitutional  s.52(1)
  

Canadian Charter of Rights & Freedoms

ENFORCEMENT

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Primary Constitution of Canada

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

R. v. Ferguson, 2008 SCC 6 at paras 58-66

[Remedial scheme of the Charter; contrasts s.52(1) and s.24(1)]

FACTS
Guy convicted of manslaughter but brought it as a constitutional appeal, rather than under the criminal code.
The SCC has never granted a constitutional exemption, much less a purely individual one. Moreover, the latter have been definitively rejected in appellate courts in Ontario, New Brunswick, and Quebec. Whether or not it chooses to grant Mr. Ferguson’s request for an individual constitutional exemption under s. 12 of the Charter, Ferguson will provide the SCC with an opportunity to circumscribe the boundaries of constitutional remedies.
ANALYSIS

• 
  The Court clarified that s.24(1) remedies are normally relevant as “personal remedies” to be granted in the case of unconstitutional government acts flowing from discretion granted under laws that are themselves constitutional.
  
• 
  In contrast, s. 52 remedies are appropriate where what is challenged is the law itself, as it was in Ferguson’s case, and targets unconstitutional laws in a non-discretionary way – of no force & effect.
  
  • 
    The presence of s. 52(1)  with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary casebycase remedies
    
• 
  If a mandatory minimum sentence is unconstitutional even only rarely, “The ball is thrown back into Parliament’s court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects” (Para 65).
  
• 
  if the unconstitutional effects of laws are remediable on a case-by-case basis under s. 24(1), in theory all Charter  violations could be addressed in this manner, leaving no role for s. 52(1) .  To meet this concern, it is suggested that s. 24(1)  should only be used in the case of laws that usually produce constitutional results and only rarely produce an unconstitutional effect.
  
  • 
    Otherwise we run the risk of unconstitutional treatment of Canadians as the unconstitutional law would remain on the books, and the role intended for s.52(1) “to strike down” such law would be undermined
    

Vancouver (City) v. Ward, 2010 SCC 27

[Test for a Charter breach claim for monetary damages]

This is very important because at the time there was a lot of disharmony between the jurisdictions regarding what someone would be entitled to if there was a charter breach.
FACTS
Ward’s charter rights were violated by Vancouver and BC officials who strip searched him, detained and seized his car without cause.
ISSUE

Raises the question of when damages may be awarded under s.24(1) of the charter and what the amount of those damages should be

RATIO

Under s.24(1) of the Charter, the Court is authorized to grant such remedies as it considers just and reasonable in the circumstances.

4-Step Test for a Charter breach claim for monetary damages:

1. 
   P must prove a Charter breach
   
2. 
   P must establish that the damages as Charter remedy are functionally justified
   
   1. 
      Compensation
      

• 
  Normally must be a prominent function of the damages – can also into account psychological/physical injuries, injuries of intangible interests
  

1. 
   Vindication
   

• 
  Recognizes that Charter rights are important and must be maintained, should never be allowed to be diminished
  
• 
  Focus on the harm that state action has caused against society as a whole
  

1. 
   Deterrence
   

• 
  Damages may deter future similar breaches by state actors
  

3. 
   Onus shifts to government side of things to show counteracting factors which would make damages unjust or inappropriate
   
4. 
   P must establish quantum of damages (how much)
   

 You should only award as much as necessary, and generally, these awards are pretty low

*Note:

Charter damages claim are under the constitutional law which are higher than Limitation Acts, which are inferior provincial legislation. However, Charter claims can still be extinguished by Limitation except

1. 
   Those claims that are of general application and
   
2. 
   Applies to government and everyone else equally
   

ANALYSIS

• 
  Court found that the breaches of rights did not reflect bad-faith (no oppression, no high-handedness) 

  
• 
  But Court orders damages – departure from previous precedent 

  

Appeal to Court of Appeal 


• 
  Trial court found that there was no right to hold ward pending the investigation to the assault - but did correctly arrest him for breach of the peace 

  
• 
  Because breach of the peace would never involve being admitted to jail (and had to endure strip search) was into this whole pending investigation of assaultthe entire thing was unreasonable 

  
• 
  The police NEVER should have taken him to jail 

  
• 
  Court of appeal would keep with the $5,000 award 

  
• 
  Other important point to make = role in defining proper pleadings 

  
• 
  Ward pleaded assault and battery against police officers who dealt with him 

  
• 
  Did not plead this against the correctional officers 

  
• 
  On appeal, ward submitted factum saying that strip search amounts to assault and battery 

  
• 
  Ward made statement to the court that Ds’ are jointly and severally liable 

  
• 
  Leave to appeal is granted under s 40 of the supreme court of Canada act