When is a class action not the preferable procedure? According to Justice Conway (in Lauzon v. Canada), a class action is not preferable when an inmate grievance procedure “has the potential to provide a ‘just and effective’ remedy” for the claim.

Inmates Allege Breach Of Their Right To Freedom Of Expression

Since 1976, federal inmates across Canada have recognized August 10 as Prisoner Justice Day. In 2010, some inmates at the Joyceville Institution designed and then wore commemorative t-shirts with an inverted maple leaf on Prisoner Justice Day. Two weeks later, the Minister of Public Safety publicly stated that these shirts were “offensive”, and the Correctional Service of Canada confiscated the shirts, declaring them to be contraband.

Two inmates – the plaintiffs in the proposed class action – alleged that their Charter right to freedom of expression had been infringed, among other things. They sought discretionary Charter damages as well as certain declarations.

The Inmate Grievance Process Is Preferable

Justice Conway held that each of the five elements required to certify the class action were present except for preferable procedure. She accepted the Crown’s argument that the inmate grievance procedure was preferable to a class action.

In her preferable procedure analysis, Justice Conway considered and applied the Supreme Court of Canada’s recent guidance on preferable procedure in AIC Limited v. Fischer (see our 2013 blog post). In Fischer, the Supreme Court held that a class proceeding will serve the goals of access to justice if (i) there are access to justice concerns that a class action could address, and (ii) these concerns remain even when alternative avenues of redress are considered.

Interestingly, Justice Conway agreed with some of the plaintiffs’ submissions, holding that:

  • The inmates could not obtain Charter damages through the grievance process.
  • The Court had jurisdiction over the inmates’ claim.
  • The inmates were not required to use the grievance process and had the option to start proceedings in court.

Nonetheless, Justice Conway rejected the plaintiffs’ primary complaints and held that the grievance process was preferable to a class action because:

  1. Limitation Period: The plaintiffs had to start their inmate grievance within 30 days. They chose not to do so, deliberately foregoing access to justice under that procedure. Justice Conway held that a class action cannot become the preferable procedure for those who choose to forego their rights in other forums.
  2. Procedural Benefits: The plaintiffs pointed to broader procedural rights, such as discovery and cross-examination, in the class action. Justice Conway rejected this argument, citingFischer, holding that access to justice requires a “fair process” to resolve claims, not the specific procedural rights asserted by the plaintiff.
  3. No Charter Damages: The imates argued that they could not seek Charter damages in the inmate grievance procedure. Justice Conway agreed but held that the inmate grievance procedure was still preferable, again citing Fischer, because the inmate procedure provided a “just and effective remedy” and “effective redress” for the claim (i.e., a direction that the shirts be returned to them).

Effective Redress Does Not Necessarily Mean Damages

Justice Conway’s decision makes it clear that a procedure may be preferable even if it does not lead to damages. As Justice Conway said, “I do not accept that a class action automatically becomes the preferable procedure simply because a plaintiff includes a claim for discretionary Charterdamages…To hold otherwise would undermine the court’s discretion in determining whether a class action is preferable in a given case.”

According to an article in the Toronto Sun, the plaintiffs intend to appeal.