Brown et al. v. Canada (Attorney General), (2013) 300 O.A.C. 290 (CA)

• Judge: Rosenberg, Gillese and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 25, 2012
• Jurisdiction: Ontario
• Citations: (2013), 300 O.A.C. 290 (CA);2013 ONCA 18

Brown v. Can. (A.G.) (2013), 300 O.A.C. 290 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.005

Marcia Brown and Robert Commanda (plaintiffs/appellants) v. The Attorney General of Canada (defendant/respondent)

(C55475; 2013 ONCA 18)

Indexed As: Brown et al. v. Canada (Attorney General)

Ontario Court of Appeal

Rosenberg, Gillese and Tulloch, JJ.A.

January 17, 2013.

Summary:

In 1965, Canada and Ontario signed an Agreement under which Ontario assumed responsibility for providing child welfare services for certain Aboriginal children with funds provided by the federal Crown. A proposed class proceeding arose out of a practice in Ontario between 1965 and 1984 in which welfare authorities removed Aboriginal children from their families and communities and, in accordance with court orders, placed them with non-Aboriginal families. The central claim against the defendant (Canada) was that it committed various actionable wrongs because it entered into the 1965 Agreement with the province. A motion was brought to certify the class proceeding and the defendant brought a motion to dismiss the action under rule 21.01(1) as disclosing no reasonable cause of action. The case management judge (Perell, J.) found that none of the causes of action pleaded by the plaintiffs met the "plain and obvious" test for disclosing a cause of action. However, Perell, J., found that it was not obvious that the causes of action framed in breach of fiduciary duty and negligence would not be viable if reframed. Perell, J., ordered that upon the plaintiffs delivering a Fresh as Amended Statement of Claim to plead claims in negligence and breach of fiduciary duty, and the court approving a revised Litigation Plan, the action was certified as a class proceeding under the Class Proceedings Act. The defendant was granted leave to appeal.

The Ontario Divisional Court, in a decision reported at [2011] O.A.C. Uned. 775, held that Perell, J., erred in conditionally certifying the class proceeding. The court ordered that the statement of claim be struck, that the plaintiffs be granted leave to amend their pleading, and that the certification motion be brought before another judge. The court also ordered that the defendant was entitled to its costs of the motion for leave and for the appeal before the Divisional Court fixed at $25,000. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal subject to a minor variation of the order of the Divisional Court and to quashing the Divisional Court's cost order.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - A motion was brought to certify a class proceeding - The defendant moved to dismiss the action under rule 21.01(1) as disclosing no reasonable cause of action - The case management judge (Perell, J.) found that none of the causes of action pleaded by the plaintiffs met the "plain and obvious" test for disclosing a cause of action - However, Perell, J., found that it was not obvious that the causes of action framed in breach of fiduciary duty and negligence would not be viable if reframed - Perell, J., ordered that upon the plaintiffs delivering a Fresh as Amended Statement of Claim to plead claims in negligence and breach of fiduciary duty, and the court approving a revised Litigation Plan, the action was certified as a class proceeding under the Class Proceedings Act (CPA) - On appeal, the Ontario Divisional Court ordered that the statement of claim be struck, that the plaintiffs be granted leave to amend their pleading, and that the certification motion be brought before another judge - The Ontario Court of Appeal affirmed the decision - Perell, J., erred in conditionally certifying the class proceeding in the absence of a statement of claim that disclosed a cause of action - The defendant had not had an opportunity to make submissions on whether the causes of action in breach of fiduciary duty and negligence, as framed by Perell, J., were viable - A reasonable interpretation of Perell, J.'s reasons was that he had already determined that issue - It was not appropriate to require the defendant to return to the same judge unless the statute required it to do so - The plaintiffs relied on s. 34(1) of the CPA, which provided that "the same judge shall hear all motions before the trial of the common issues" - However, s. 34(2) provided that the regional senior judge shall assign another judge where the case management judge "becomes unavailable for any reason" - The phrase "for any reason" was wide enough to include circumstances in which the principles of natural justice precluded the judge continuing with the case - When s. 34(1) was read with s. 34(2), the legislature had not sanctioned an exception to the principle of natural justice that no one should be a judge in their own cause - See paragraphs 44 to 59.

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 Practice - Topic 209.3 ].

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - [See Practice - Topic 7053.1 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Novel or important point - [See Practice - Topic 7053.1 ].

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - [See Practice - Topic 7053.1 ].

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to party and party costs - Class or representative actions - In 1965, Canada and Ontario signed an Agreement under which Ontario assumed responsibility for providing child welfare services for certain Aboriginal children with funds provided by the federal Crown - A proposed class proceeding arose out of a practice in Ontario between 1965 and 1984 in which welfare authorities removed Aboriginal children from their families and communities and, in accordance with court orders, placed them with non-Aboriginal families - The central claim against the defendant (Canada) was that it committed various actionable wrongs because it entered into the 1965 Agreement with the province - The plaintiffs appealed from an order of the Divisional Court that set aside the conditional certification of the class action by the case management judge and ordered that the certification motion be brought before another judge - The plaintiffs also appealed from the order of the Divisional Court awarding costs of both the motion for leave and the appeal before the Divisional Court in the amount of $25,000 - The Ontario Court of Appeal dismissed the appeal with the exception of quashing the Divisional Court's cost order - Section 31(1) of the Class Proceedings Act provided that a court, in exercising its discretion in fixing costs, could consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest - This case involved all three factors mentioned in s. 31(1) - The court held that given those considerations, it would not make any order for costs of the motion for leave to appeal or the appeal to the Divisional Court - See paragraphs 58 to 59.

Practice - Topic 8331

Costs - Appeals - Costs of appeal - Novel or important questions - [See Practice - Topic 7053.1 ].

Practice - Topic 8331.1

Costs - Appeals - Costs of appeal - Public interest - [See Practice - Topic 7053.1 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 8].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 13].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 14].

F.A. et al. v. Henley et al. (2008), 251 B.C.A.C. 161; 420 W.A.C. 161; 291 D.L.R.(4th) 378; 2008 BCCA 43, refd to. [para. 16].

Bonaparte v. Canada (Attorney General) - see Lafrance Estate et al. v. Canada (Attorney General) et al.

Lafrance Estate et al. v. Canada (Attorney General) et al. (2003), 169 O.A.C. 376; 64 O.R.(3d) 1 (C.A.), refd to. [para. 17].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 17].

Pearson v. Inco Ltd. et al. (2006), 208 O.A.C. 284; 79 O.R.(3d) 427 (C.A.), refd to. [para. 43].

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. 44].

McCracken v. Canadian National Railway Co. (2012), 293 O.A.C. 274; 111 O.R.(3d) 745; 2012 ONCA 445, refd to. [para. 45].

Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767; 3 N.R. 410, refd to. [para. 53].

Ruffolo et al. v. Sun Life Assurance Co. of Canada (2009), 247 O.A.C. 209; 95 O.R.(3d) 709; 2009 ONCA 274, refd to. [para. 59].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2005] O.T.C. 160; 74 O.R.(3d) 728 (Sup. Ct.), refd to. [para. 59].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 12 [para. 35]; sect. 31(1) [para. 39]; sect. 34 [para. 37].

Rules of Civil Procedure (Ont.), rule 21.01(1) [para. 7].

Counsel:

Jeffery Wilson and Morris Cooper, for the appellants;

Owen D. Young, Paul J. Evraire, Q.C., and Michael W. Bader, Q.C., for the respondent.

This appeal was heard on October 25, 2012, before Rosenberg, Gillese and Tulloch, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Rosenberg, J.A., and was released on January 17, 2013.