Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572

• Judge: Strathy, C.J.O., LaForme and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 13, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 572;(2015), 337 O.A.C. 315 (CA)

Amyotrophic Lateral Sclerosis v. Windsor (2015), 337 O.A.C. 315 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.014

Amyotrophic Lateral Sclerosis Society of Essex County (plaintiff/respondent) v. The Corporation of the City of Windsor (defendant/appellant)

(C59525)

Belle River District Minor Hockey Association Inc. and Essex County Dancers Incorporated (plaintiffs/respondents) v. The Corporation of the Town of Tecumseh (defendant/appellant)

(C59526; 2015 ONCA 572)

Indexed As: Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City)

Ontario Court of Appeal

Strathy, C.J.O., LaForme and Tulloch, JJ.A.

August 12, 2015.

Summary:

The appellant municipalities appealed the certification of two class actions commenced on October 24, 2008. The actions claimed that charitable lottery licensing and administration fees collected by the municipalities were direct taxes and therefore ultra vires because the revenues far exceeded the costs of administration. The temporal scope of the class included charities that had paid fees since 1990. Contentious common issues related to limitation periods.

The Ontario Court of Appeal allowed the appeal in part. "[W]ith some adjustment these proceedings meet the requirements of s. 5(1) of the Class Proceedings Act. ... The time has come to ring the bell and get them on their way."

Practice - Topic 37

Actions - Conduct of - General - Case management - [See first Practice - Topic 210.5 ].

Practice - Topic 208.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Creation of sub-classes - The appellant municipalities appealed the certification of two class actions commenced on October 24, 2008 - The actions claimed that charitable lottery licensing and administration fees collected by the municipalities were ultra vires - The temporal scope of the class included charities that had paid fees since 1990 - The class definition encompassed persons who paid fees from and after October 24, 1993 - The Ontario Court of Appeal certified a subclass whose claims might be subject to a limitations defence - "Here, issues of liability and damages are common to all class members. However, the claims of class members with presumptively time-barred claims raise common issues of fact and law not shared by those with timely claims. They should form a subclass. I would therefore certify a subclass of persons who paid fees between October 24, 1993 and October 23, 2002 and between January 1, 2004 and October 23, 2006. These are the payments made within the 'ultimate limitation period' in s. 15 of the Limitations Act, 2002, but not within the basic limitation period and not preserved by the transition rules of the statute." - See paragraphs 46 and 47.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The Ontario Court of Appeal agreed with the appellants' submissions that the class definition in this proceeding was arbitrary - "[T]he class should not have been defined using an arbitrary cut-off date. Arbitrariness in the class definition defeats some of the important purposes of class proceedings: binding all persons who ought to be bound by the decision, providing access to justice and achieving judicial economy. ... Nor was it appropriate to adopt a 'wait and see' approach to the class definition, leaving it to the defendants to define its contours by a summary judgment motion. It is the plaintiffs' responsibility to define the class properly, not the defendants'." - See paragraph 39.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The appellant municipalities appealed the certification of two class actions commenced on October 24, 2008 - The actions claimed that charitable lottery licensing and administration fees collected by the municipalities were direct taxes and therefore ultra vires because the revenues far exceeded the costs of administration - The temporal scope of the class included charities that had paid fees since 1990 - The Ontario Court of Appeal defined the class in this case: "[T]he temporal boundary of the class can be defined in a rational way by reference to the ultimate limitation period in s. 15(2) of the Limitations Act, 2002. That provides, 'No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.' This would result in a class definition encompassing persons who paid fees from and after October 24, 1993. Although s. 15(4) of the Limitations Act, 2002 provides an exception to the ultimate limitation period in the case of wilful concealment, drawing the class boundary at the ultimate limitation period is not arbitrary because it separates claims that require proof of wilful concealment from those that do not. ... [C]oncerns with respect to manageability can be addressed by the creation of a subclass, by stating common issues for the subclasses and by appropriate case management." - See paragraphs 40 to 45.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The proposed claims raised common issues as to liability, damages and limitation periods - The certification judge certified seven common issues, including three issues which related to limitation periods - The Divisional Court rejected the appellants' argument that it would be unfair and inefficient to litigate the timely claims alongside the presumptively time-barred ones - The Ontario Court of Appeal held that the certification judge "properly certified common issues relating to liability (issue 1), defences (issue 2) and remedies (issues 6 and 7) that are common to all class members. However, common issues 3, 4 and 5 are of no interest to class members whose claims are timely. Those issues are only applicable to the subclass members, whose claims may be subject to a limitations defence. They should be subclass common issues." - See paragraphs 48 to 50.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The Ontario Court of Appeal addressed the issue of whether this class proceeding met the requirement of s. 5(1)(d) of the Class Proceedings Act (CPA); i.e., whether it would be the preferable procedure for the resolution of the common issues - The Court disagreed with the appellants' argument that combining the presumptively time-barred claims with the timely claims was not the preferable procedure for the resolution of either - "[T]he significant features of class proceedings - the ability to case manage groups of claims raising common issues and the ability to make binding determinations of those issues - make a class proceeding appropriate to resolve these claims. With active and strategic case management, and a resolve by the parties to focus on the fair and efficient resolution of the issues, both liability and limitation period issues could be resolved relatively expeditiously. Section 12 of the CPA empowers the case management judge to make appropriate orders to ensure the fair and expeditious determination of the proceeding and to impose appropriate terms on the parties. This provision is procedural ... and does not permit a judge to ignore or override provisions of the CPA. However, together with Rule 1.04 of the Rules of Civil Procedure ... it does permit the judge to impose procedural terms that will promote access to justice and judicial economy as well as ensure the 'just, most expeditious and least expensive determination' of the proceeding on its merits." - See paragraphs 66 to 68.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - In this proceeding, there were two issues of preferability: (1) the complexity introduced by the need to resolve potentially time-barred claims along with the timely claims; and (2) the existence of different regulatory and fiscal regimes over the broad class period - The Ontario Court of Appeal held that this case met the preferable procedure requirement of s. 5(1)(d) of the Class Proceedings Act - "In this case, individual issues may remain after the common issues have been resolved. It may be asserted that particular class members had special knowledge that triggered the commencement of the limitation period, notwithstanding that the information was not publicly known. Different regulatory regimes, fee scales and cost-recovery methods may require analysis of particular segments of the class period. I am not persuaded, however, that this would make the proceeding unmanageable or incapable of fair and efficient resolution. Indeed, it is my view that these issues can most effectively and fairly [be] resolved in the context of this proceeding." - See paragraph 72.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Appointment or replacement of representative plaintiff - The Ontario Court of Appeal certified a subclass whose claims might be subject to a limitations defence, and considered the issue whether a separate subclass representative was required - The appellants referred to s. 5(2) of the Class Proceedings Act, "which provides that where, in the opinion of the court, the protection of subclass members requires that they be separately represented, the court shall not certify the proceeding unless there is a representative plaintiff who would fairly and adequately represent the subclass, has produced a workable litigation plan on behalf of the subclass and who does not have, on the subclass common issues, a conflict of interest with the subclass. I do not read this statutory requirement as precluding the class representative from representing a subclass. It is only when the representative plaintiff cannot fairly and adequately represent the subclass that the need for a separate subclass representative arises" - The Court was not satisfied that the representative plaintiffs were unable to represent all class members - "[T]hat issue, and when it should be addressed, are matters best left to the judgment of the case management judge." - See paragraphs 51 to 58.

Practice - Topic 210

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Respecting validity of municipal decisions - The appellant municipalities appealed the certification of two class actions commenced on October 24, 2008 - The actions claimed that charitable lottery licensing and administration fees collected by the municipalities were direct taxes and therefore ultra vires because the revenues far exceeded the costs of administration - The temporal scope of the class included charities that had paid fees since 1990 - Contentious common issues related to limitation periods - The Ontario Court of Appeal allowed the appeal in part -"[W]ith some adjustment these proceedings meet the requirements of s. 5(1) of the Class Proceedings Act. ... The time has come to ring the bell and get them on their way." - See paragraph 5 - "[T]he class definition was arbitrary and some common issues lacked commonality. These are not fatal defects, however. They can be corrected by modifying the class definition, creating a subclass and stating subclass common issues. A subclass representative is not required, at this time. Thus modified, a class action remains the preferable procedure for the resolution of the claims." - See paragraph 32.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General (incl. venue, discovery, etc.) - [See first Practice - Topic 210.5 ].

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The Ontario Court of Appeal discussed the features of effective case management in class proceedings - "Case management judges in class proceedings are of course required to be fair to both parties, and they should take the representative plaintiff's litigation plan as an important starting point in guiding the case management process. At the same time, they are entitled to seek and impose creative solutions to the efficient determination of the issues. ... The case management judge is entitled to give directions as to when certain steps should be accomplished and as to what motions may be brought, and when. ... The case management judge is also entitled to determine the order in which some issues are addressed. He or she is entitled, but not required, to determine whether some issues are amenable to summary judgment and to schedule the proceedings accordingly." - See paragraph 71.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The Ontario Court of Appeal stated that "case management should be complimented by a resolve by the parties to focus on the fair and efficient resolution of the issues. That should be true in all litigation, but it is particularly important in complex litigation such as class proceedings. All the more so in a case like this, in which the ultimate cost will be borne by the public, one way or the other. It behooves the parties, assisted by the case management judge, to focus their energies accordingly." - See paragraph 73.

Practice - Topic 210.6

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Limitation of actions - [See Practice - Topic 210 ].

Practice - Topic 210.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Counsel (incl. choice of, instruction of, etc.) - [See second Practice - Topic 210.5 ].

Cases Noticed:

Eurig Estate v. Ontario Court (General Division), Registrar, [1998] 2 S.C.R. 565; 231 N.R. 55; 114 O.A.C. 55, refd to. [para. 1].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al., [2007] 1 S.C.R. 3; 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 10].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 33].

Dumoulin v. Ontario et al., [2005] O.T.C. 797; 19 C.P.C.(6th) 234 (Sup. Ct.), refd to. [para. 39].

Ragoonanan et al. v. Imperial Tobacco Canada Ltd. et al., [2005] O.T.C. 950; 78 O.R.(3d) 98 (Gen. Div.), affd. (2008), 236 O.A.C. 199; 54 C.P.C.(6th) 167 (Div. Ct.), refd to. [para. 39].

Serhan et al. v. Johnson & Johnson et al. (2006), 213 O.A.C. 298; 85 O.R.(3d) 665 (Div. Ct.), leave to appeal refused (2007), 369 N.R. 397 (S.C.C.), refd to. [para. 41].

McKenna v. Gammon Gold Inc. et al., [2010] O.T.C. Uned. 1591; 88 C.P.C.(6th) 27; 2010 ONSC 1591, refd to. [para. 41].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2004] O.T.C. 112; 44 C.P.C.(5th) 350 (Sup. Ct.), refd to. [para. 46].

Dell'Aniello v. Vivendi Canada Inc., [2014] 1 S.C.R. 3; 453 N.R. 150; 2014 SCC 1, refd to. [para. 48].

Sankar v. Bell Mobility Inc. et al., [2013] O.T.C. Uned. 5916; 52 C.P.C.(7th) 75; 2013 ONSC 5916, leave to appeal refused, 2013 ONSC 7529 (Div. Ct.), refd to. [para. 48].

Stone v. Board of Education of Wellington County (1999), 120 O.A.C. 296, leave to appeal refused (2000), 254 N.R. 395; 134 O.A.C. 400 (S.C.C.), refd to. [para. 52].

Pearson et al. v. Boliden Ltd. et al., [2001] B.C.T.C. 1054; 94 B.C.L.R.(3d) 133; 2001 BCSC 1054, varied on other grounds (2002), 175 B.C.A.C. 104; 289 W.A.C. 104; 222 D.L.R.(4th) 453; 2002 BCCA 624, refd to. [para. 55].

Dominguez v. Northland Properties Corp. et al., [2012] B.C.T.C. Uned. 328; 2012 BCSC 328, refd to. [para. 55].

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), leave to appeal denied (2000), 258 N.R. 194; 138 O.A.C. 200 (S.C.C.), refd to. [para. 55].

Caponi v. Canada Life Assurance Co. et al., [2009] O.T.C. Uned. 29; 72 C.P.C.(6th) 331 (Sup. Ct.), refd to. [para. 55].

Fischer et al. v. IG Investment Management Ltd. et al., [2013] 3 S.C.R. 949; 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 61].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), leave to appeal refused (2005), 344 N.R. 192; 207 O.A.C. 400, refd to. [para. 64].

McCracken v. Canadian National Railway Co. (2012), 293 O.A.C. 274; 2012 ONCA 445, refd to. [para. 68].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 5(2) [para. 54]; sect. 12 [para. 68].

Authors and Works Noticed:

United States, Federal Judicial Centre, Manual for Complex Litigation (4th Ed. 2004), para. 10.13 [para. 69].

Winker, Warren K., et al., The Law of Class Actions in Canada (2014), p. 93 [para. 34].

Counsel:

Scott Hutchison, for the appellant, City of Windsor;

Brendan van Niejenhuis, for the appellant, Town of Tecumseh;

Peter W. Kryworuk and Yola S. Ventresca, for the respondents.

This appeal was heard on May 13, 2015, before Strathy, C.J.O., LaForme and Tulloch, JJ.A., of the Ontario Court of Appeal. In reasons written by Strathy, C.J.O., the Court delivered the following judgment, dated August 12, 2015.