In Sherry Good v. Toronto Police Services Board, the Ontario Divisional Court considered an appeal by the plaintiffs from the denial of certification of a proposed class action on behalf of protestors who had been detained at the G20 summit that was held in Toronto in 2010.
In reaching his decision to allow the appeal and grant certification, Nordheimer J., speaking for the court, noted the unique nature of certification appeals in which plaintiffs are permitted to reformulate their proceedings if they fail on the first try. On appeal of a certification motion, plaintiffs are given considerable leeway to amend, including the opportunity to add defendants, amend common issues and alter the class definition:
The proposed class action, as presented on this appeal, was markedly different from the proposed class action that was considered by the motion judge. This is a common feature of a great many class proceedings. Unlike almost any other type of action, it has become almost routine for plaintiffs in class actions to reformulate their proceeding if they are unsuccessful in obtaining certification in the first instance. Plaintiffs will add or remove defendants. They will add, delete or otherwise amend common issues. They will alter class definitions. They will amend and re-amend the statement of claim. This “moving target” approach does not just occur once. It can occur many times and at all of the different levels of the appellate process, including at the Court of Appeal, if the goal of certification continues to elude the representative plaintiff. In fact, the common issues and the class definition are often amended more than once at each level.
Nordheimer J. observed that, in the normal course, failure to plead a material element of a party’s claim would lead to dismissal of the action. He described the “moving target” approach of certification hearings as a peculiar phenomenon that has been countenanced by the Ontario Court of Appeal in Pearson v. Inco Ltd. (2005), 78 O.R. (3d) 641.
The “moving target” approach has implications on the standard of review. According to Nordheimer J., the normal standard of review, that of a “palpable and overriding error of fact or of mixed fact and law”, is inappropriate where the nature of the claim, and the foundation for it, has been rewritten subsequent to the original decision. If a substantially amended motion record is permissible on appeal, it is artificial to require certification appeal judges to find a palpable and overriding error in that context.
This departure from the well-established standard of appellate review is a development worth watching.