On April 6, 2016, the Ontario Court of Appeal (OCA) released its decision in Good v. Toronto (Police Services Board) (Good). In upholding the certification of two class actions against the Toronto Police Service (TPS), the OCA has again permitted a class action plaintiff to substantially reformulate her case on appeal from an unsuccessful certification motion, with little countervailing consequence in terms of costs.

PROCEDURAL HISTORY

These class proceedings arise out of police conduct during the G20 summit held in Toronto in 2010. In the course of responding to protests and demonstrations surrounding the summit, police detained groups of people inside police cordons (“kettling”) in various locations around Toronto. Many other individuals were held in a makeshift detention centre. Approximately 1,000 people were reportedly arrested or detained during the summit, most of who were reportedly released without charge.

At certification, the plaintiff’s claim named the Attorney General of Canada, the Ontario Crown, and the Peel Police Services Board as defendants in addition to TPS. The plaintiff pleaded multiple causes of action at common law and under the Canadian Charter of Rights and Freedoms. She proposed a class proceeding with numerous subclasses: one for each location where individuals were “kettled,” one for individuals detained or arrested in the vicinity of the Ontario legislature, a “residual” subclass for individuals arrested at other locations and later released without charge, and one for individuals imprisoned at the makeshift detention centre.

The motions judge dismissed the certification motion, holding that: only some of the plaintiff’s claims disclosed a cause of action (and then only as against TPS), the proposed subclasses had no substantial common link, the proposed class definition was vague and overly broad, the plaintiff’s claims did not raise common issues, and that a class proceeding would not be the preferable procedure.

The plaintiff significantly reformulated her claim on her appeal to the Divisional Court. She narrowed the proposed class, abandoned her claims against all defendants except TPS, and dropped a number of the causes of action asserted before the motion judge. The Divisional Court allowed the appeal and certified two class actions with two representative plaintiffs: one for the five kettling locations and one for the detention centre. It also awarded the plaintiff her costs of the certification motion, although in a reduced amount to reflect TPS’s wasted time and expense in responding to aspects of the plaintiff’s claim that were later abandoned.

TPS appealed the Divisional Court’s certification decision, and the plaintiff cross-appealed the costs order.

CERTIFICATION APPEAL

The OCA rejected TPS’s argument that the Divisional Court improperly conducted a de novo (fresh) review of the certification decision by reversing determinations made by the certification judge that were not directly related to aspects of the claim that were reformulated on appeal. While recognizing that a certification judge’s decision is entitled to substantial deference, the OCA also held that when a plaintiff narrows its proposed class proceeding on appeal, the appellate court is entitled to “some latitude” in reviewing the reformulated claim.

Applying these principles, the OCA held that the Divisional Court was justified in reversing determinations made by the motion judge, due to the narrowed scope of the proposed class proceeding. In doing so, it found that the certification judge had made errors in principle that had only “become significant” in the context of the case as reframed on appeal. On the remaining issues on TPS’s appeal, the OCA agreed with the Divisional Court that the plaintiff’s reformulated claims met all of the criteria for certification of a class proceeding.

COSTS APPEAL

At the Divisional Court, TPS unsuccessfully argued that the plaintiff should be denied costs despite its success in having the action certified. The Divisional Court awarded costs to the plaintiff, but in a much lower quantum than requested, “to reflect the time that was spent on the unsuccessful aspects of the claim as originally advanced.” The plaintiff had sought nearly C$750,000 in costs of the certification motion; the Divisional Court awarded her approximately C$125,000 for the original certification motion (and C$55,000 for the appeal to the Divisional Court).

On appeal, the OCA agreed that some reduction in the costs awarded to the plaintiff was appropriate to address the significant evolution of the claim from the original certification motion but found that the Divisional Court had erred in ordering such a deep discount. Among other things, the OCA found that the Divisional Court had given insufficient consideration to the public interest and access to justice concerns, and expressed concerns that the Divisional Court’s costs award could have a chilling effect on class proceedings brought in the public interest.

While recognizing that the plaintiff’s claim was much different than it had been before the motions judge, the OCA was also of the view that the plaintiff’s “central claims” against TPS remained intact throughout the appeal process. In the result, the OCA varied the costs award and awarded the plaintiff C$315,000 in costs for the certification motion (more than double the Divisional Court’s award). The plaintiff was also awarded costs of C$65,000 for her appeal to the OCA.

CONCLUSION

The practice of plaintiffs reformulating their claims on appeal threatens to undermine the goal of judicial economy, the appeal court is essentially called upon to perform a fresh review of the certification criteria rather than apply the more limited standards of review ordinarily applicable to appeals. And unfortunately, as exemplified in Good, costs have generally not proven an effective tool to compensate the defendants for the wasted time and expense of responding to the original certification motion.

Good affirms that there is “some latitude” for a reviewing court to consider reformulated claims on appeal from an unsuccessful certification motion. However, the OCA accepted that there are limits to an appeal court’s consideration of issues not raised below. The defendant must be afforded procedural fairness in responding to a reformulated claim, and a fresh certification motion may be necessary where the plaintiff’s amendments “significantly change the underpinning of the class action.”