Good v. Toronto Police Services Board et al., (2016) 347 O.A.C. 307 (CA)

• Judge: Hoy, A.C.J.O., Pardu and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 01, 2016
• Jurisdiction: Ontario
• Citations: (2016), 347 O.A.C. 307 (CA);2016 ONCA 250

Good v. Police Services Bd. (2016), 347 O.A.C. 307 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AP.015

Sherry Good (plaintiff/respondent) v. Toronto Police Services Board , Attorney General of Canada, Her Majesty the Queen in Right of Ontario and Regional Municipality of Peel Services Board (defendant/appellant)

(C60095; 2016 ONCA 250)

Indexed As: Good v. Toronto Police Services Board et al.

Ontario Court of Appeal

Hoy, A.C.J.O., Pardu and Roberts, JJ.A.

April 6, 2016.

Summary:

The plaintiff commenced a proposed class action against Toronto Police Services Board (TPS) and three other defendants, asserting multiple claims arising out of the G20 Summit held in Toronto in 2010. The motion judge dismissed the plaintiff's motion for certification, finding that the plaintiff had not met the requirements of ss. 5(1)(b), (c), (d) and (e) of the Class Proceedings Act. Before appealing, the plaintiff narrowed her proposed class proceeding: the class was restricted to subclasses of individuals subject to mass detention at specified locations; only TPS remained as a defendant; and the causes of action that the motion judge had found were not made out were dropped.

The Ontario Divisional Court, in a decision reported at (2014), 321 O.A.C. 358, certified the narrowed claim as two separate class proceedings. The Court awarded costs of the original certification motion in the all-inclusive amount of $125,728 in favour of the plaintiff. TPS appealed from the order certifying the two proceedings. The plaintiff sought leave to cross-appeal the costs award.

The Ontario Court of Appeal dismissed TPS's appeal, granted leave and allowed the plaintiff's cross-appeal, awarding all-inclusive costs on the certification motion in the amount of $315,000 to the plaintiff.

Practice - Topic 208.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Creation of sub-classes - [See second Practice - Topic 209.3 ].

Practice - Topic 208.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Aggregate damages - [See third Practice - Topic 209.3 ].

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 class action against Toronto Police Services Board asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - On appeal, the class was restricted to subclasses of individuals subject to mass detention at specified locations - The identifiable class criterion was met on appeal - The Divisional Court found "the commonality of an alleged command order being made ordering the detention of the class members without regard for the individual characteristics or conduct of each class member" - The Ontario Court of Appeal agreed with the Divisional Court that the combination of classes in a single proceeding was not prohibited - "While s. 5.1(b) of the [Class Proceedings] Act requires that 'there is an identifiable class of two or more persons', it does not prohibit the certification of an action as a class proceeding where there is more than one class. ... [I]t would be overly restrictive to interpret the Act as containing such a prohibition. ... [W]here, as here, the proposed classes share a central commonality, joining multiple classes in the same class proceeding would facilitate recognized goals of class proceedings, and the other requirements of s. 5.1 would be satisfied, a motion judge, in her discretion, may do so." - See paragraphs 57 to 64.

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 class action against Toronto Police Services Board (TPS) asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - The core allegation was that the police ordered mass detention and/or arrest of individuals without any consideration of whether their individual conduct warranted such action - The motion judge, in the context of a proposed class that included more than location-based subclasses, found that the class definition was overly broad - On appeal, the class was restricted to location-based subclasses - There was some basis in fact that there was a single command order for group detentions and arrests at each location - The Ontario Court of Appeal rejected TPS's argument that the motion judge correctly concluded that the location-based subclass definitions should exclude individuals who engaged in unlawful conduct during the protests - The Court agreed with the Divisional Court which stated that "it is of no consequence whether any member of the class did, in fact, commit a criminal offence or a breach of the peace. The police cannot justify the detention of a person based on information that they either did not have, or which they did not rely upon, in ordering a person to be detained." - See paragraph 66.

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 class action against Toronto Police Services Board (TPS) asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - The motion judge concluded that monetary liability to class members (Class Proceedings Act, s. 24(1)) could not be determined at trial on a global basis - The Ontario Court of Appeal agreed with the Divisional Court that it should be open to the common issues judge to consider whether aggregate damages would be an appropriate remedy, in whole or in part - Further, "this appears to be a case where the common issues judge may well determine that at least part of TPS' liability can reasonably be determined without proof by individual class members. As the Divisional Court highlighted, s. 24(1) asks whether the aggregate or a part of the defendant's liability can reasonably be determined without proof by class members. And, as the Divisional Court observed, it would be open to a common issues judge to determine that there was a base amount of damages that any member of the class (or subclass) was entitled to as compensation for breach of his or her rights." - See paragraphs to 72 to 75.

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 class action against Toronto Police Services Board (TPS) asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - The motion judge did not consider whether the proposed punitive damages issue was a proper common issue - The Divisional Court concluded that, in this case, it was a proper common issue - On appeal, TPS argued that the Divisional Court erred - The Ontario Court of Appeal rejected that argument - The common issues dealing with alleged breaches of the class members' rights contemplated that liability would be determined at the common issues trial - The common issue proposed, and certified, was only whether TPS' conduct justified an award of punitive damages - The plaintiff did not propose as a common issue whether an award of punitive damages should be made against TPS and, if so, in what amount - "[I]t would also be open to the trial judge to consider whether, having regard to Whiten, an award of punitive damages should be made against TPS and, if so, in what amount, even though this issue has not been certified. The aggregate assessment of damages common issue contemplates that the common issues trial judge could determine at least part of the monetary relief owed to class members on an aggregate basis." - See paragraphs 76 to 82.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals - The proposed class action against Toronto Police Services Board asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - The motion judge dismissed the motion for certification - Before appealing, the plaintiff narrowed her proposed class proceeding - The Divisional Court certified the narrowed claim as two separate class proceedings - TPS appealed, arguing that the Divisional Court improperly conducted a de novo review, rather than applying an appellate standard of review - The Ontario Court of Appeal did not agree that the Divisional Court's intervention was impermissible - "Where the Divisional Court reversed determinations made by the motion judge, it was justified in doing so because of the narrowed scope of the proposed class proceeding. ... [T]he motion judge made errors in principle which, while of no significance on the certification motion as framed before her, became significant in the context of the proposed class action as framed on appeal. In these circumstances, deference was necessarily displaced." - See paragraphs 51 to 54.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals - The proposed class action against Toronto Police Services Board (TPS) asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - TPS argued that the Divisional Court erred by not affording deference to the motion judge's determination that a class proceeding was not the preferable procedure (Class Proceedings Act, s. 5(1)(d)) - The Ontario Court of Appeal rejected the argument - "In the circumstances, the Divisional Court was entitled to consider the requirement in s. 5(1)(d) de novo. 'Lack of commonality' was fundamental to the motion judge's determination that a class proceeding would not be the preferable procedure for the resolution of the common issues ... . The Divisional Court correctly concluded both that the plaintiff had satisfied the identifiable class criterion in s. 5(1)(b) and that the core allegation in the action was indeed a common issue. These conclusions radically altered the landscape in which the preferability analysis was conducted. I agree with the Divisional Court that a class proceeding is the preferable procedure for the resolution of the common issues and with its reasons for so concluding. ... More than five years after the events at issue occurred, only 16 members of the class have brought individual claims ... . The access to justice issue identified by the Divisional Court continues to be an important one." - See paragraphs 83 to 87.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The proposed class action against Toronto Police Services Board (TPS) asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - The motion judge dismissed the motion for certification - Before appealing, the plaintiff narrowed her proposed class proceeding - The Divisional Court certified the narrowed claim as two separate class proceedings - The plaintiff sought costs of the original motion in the amount of $749,267.03 - The Divisional Court awarded costs in the significantly reduced amount of $125,728.03 - The Ontario Court of Appeal held that the Divisional Court erred in principle in two respects - "First, in determining the quantum of the award, the Divisional Court relied on inapplicable benchmarks. Second, it failed to consider the impact of its costs award on access to justice, a fundamental object of the [Class Proceedings] Act and one of the principles and factors that a court must keep in mind in arriving at its costs disposition ... . Either of these errors in principle warrants the intervention of this court." - The Court awarded all-inclusive costs on the certification motion in the amount of $315,000 - See paragraphs 101 to 117.

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 proposed class action against Toronto Police Services Board (TPS) asserted multiple claims arising out of the G20 Summit held in Toronto in 2010 - The Divisional Court certified two class actions - On appeal, TPS argued that the certification of the claim as two separate proceedings in the absence of discrete statements of claim was procedurally unfair - The Ontario Court of Appeal rejected the argument - The Court recently affirmed that "there must be some latitude on appeal for consideration of issues not raised at first instance provided that the other party is afforded procedural fairness" - There was no procedural unfairness to TPS - TPS' ability to make submissions on the certification test was unaffected by the absence of separate pleadings - The possibility of converting the single proposed class action into more than one class action was suggested as an alternative in the plaintiff's factum before the Divisional Court - TPS was not taken by surprise - See paragraphs 88 to 93.

Practice - Topic 8825.4

Appeals - General principles - Duty of appeal court from decision of motions judge on class action certification motion - [See both Practice - Topic 209.9 ].

Counsel:

Kevin McGivney, Cheryl M. Woodin and Damian Hornich, for the appellant;

Eric K. Gillespie, Kent Elson, Kiel Ardal and Priya Vittal, for the respondent;

David Morritt and Alexis Beale, for the intervener, Canadian Civil Liberties Association.

This appeal was heard on February 1, 2016, before Hoy, A.C.J.O., Pardu and Roberts, JJ.A., of the Ontario Court of Appeal. In reasons written by Hoy, A.C.J.O., the Court delivered the following judgment, released on April 6, 2016.