Jane Doe et al. v. Manitoba, 2008 MBQB 217

JudgeSchulman, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateJuly 31, 2008
JurisdictionManitoba
Citations2008 MBQB 217;(2008), 232 Man.R.(2d) 157 (QB)

Jane Doe v. Man. (2008), 232 Man.R.(2d) 157 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. AU.009

Jane Doe 1 and Jane Doe 2, on their own behalf, and on behalf of Certain Pregnant Women who are insured persons pursuant to The Health Services Insurance Act, R.S.M. 1987, c. H-35, and who require access to Therapeutic Abortion Services (plaintiffs) v. The Government of Manitoba (defendant)

(CI 01-01-24108; 2008 MBQB 217)

Indexed As: Jane Doe et al. v. Manitoba

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

July 31, 2008.

Summary:

The plaintiffs (under pseudonyms) commenced an action against the government of Manitoba (Government), for a declaration "that the funding regime under the Health Services Insurance Act for therapeutic abortion services violated their rights under the Charter", and sought damages. The Government moved for summary judgment dismissing the claim, and the plaintiffs moved for summary judgment allowing the claim except for damages.

The Manitoba Court of Queen's Bench, in a decision reported at 189 Man.R.(2d) 284, dismissed the Government's motion and allowed that of the plaintiffs, finding that the impugned legislation violated the rights of the plaintiffs under ss. 2(a), 7 and 15 of the Charter and could not be saved. The Government appealed.

The Manitoba Court of Appeal, in a decision reported at 195 Man.R.(2d) 309; 351 W.A.C. 309, affirmed the dismissal of the Government's motion and reversed the judgment allowing the plaintiffs' claim. The Charter issues were complex, giving rise to a need for a full trial record, and there was insufficient evidence of the plaintiffs' state of mind. There were genuine issues requiring a trial. Leave to appeal was dismissed. The plaintiffs moved for certification as a class proceeding (the statement of claim was filed before the enactment of the Class Proceedings Act). Counsel agreed that there were five principles to be applied; namely, those articulated in Western Canadian Shopping Centres Inc. v. Dutton (2000). They agreed on the resolution of the first principle (whether the class was capable of clear definition), but were at odds on the resolution of the rest.

The Manitoba Court of Queen's Bench allowed the plaintiff's motion. The court found, on the five considerations referred to in Dutton, that it was fair and just that the action be certified as a class action.

Civil Rights - Topic 914

Discrimination - Class complaints - When appropriate - [See first Practice - Topic 209.3 ].

Crown - Topic 4403

Actions by and against Crown in right of a province - Combined action for declaration and damages - [See first Practice - Topic 209.3 ].

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - General principles - The plaintiffs moved for certification as a class proceeding of an action against the Government of Manitoba - The statement of claim was filed before the enactment of the Class Proceedings Act - Counsel agreed that there were five principles to be applied; namely, those articulated in Western Canadian Shopping Centres Inc. v. Dutton (2000) - They agreed on the resolution of the first principle (whether the class was capable of clear definition), but were at odds on the resolution of the rest - Accordingly, the Manitoba Court of Queen's Bench considered the following general principles: (i) whether there was a significant issue that was common to all claims of members of the class; namely, whether, in enacting the regulation in question, the Government acted in good faith and for a proper motive; (ii) whether success for the plaintiffs would benefit all members of the class; (iii) whether the plaintiffs and their counsel were capable of adequately representing the interests of the class; and (iv) whether there were overarching issues outweighing the advantages achieved by permitting an action proceed as a class action - See paragraphs 3 to 4.

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 plaintiffs moved for certification as a class proceeding of an action against the Government of Manitoba, for a declaration "that the funding regime under the Health Services Insurance Act for therapeutic abortion services violated their rights under the Charter", and damages - The statement of claim was filed before the enactment of the Class Proceedings Act - The Manitoba Court of Queen's Bench found that it was fair and just that the action be certified as a class action, on the following considerations - There were several issues that were common to all cases in the class - The issues were in an evolving field of law, and it could not be stated with certainty what factors, in the final analysis, would be relevant and important - Other potential plaintiffs would benefit if the legislation was found to be invalid and a Charter remedy granted; if special damages were awarded; if it was found that the Government acted in bad faith and punitive damages were awarded - If an order for certification was made, relitigating the issues would be barred - There would be a significant advantage to the parties if the order for certification was granted - See paragraphs 5 to 19.

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 plaintiffs moved for certification as a class proceeding of an action against the Government of Manitoba, for a declaration "that the funding regime under the Health Services Insurance Act for therapeutic abortion services violated their rights under the Charter", and damages - The statement of claim was filed before the enactment of the Class Proceedings Act - There was an order in effect permitting the plaintiffs to conduct the proceedings under pseudonyms - The parties agreed that the class was capable of clear definition, but were at odds on whether the plaintiffs and their counsel were capable of adequately representing the interests of the class - On that point, the Government's submissions related to the failure of the plaintiffs to identify themselves; and secondly, to the timing of the motion - The Manitoba Court of Queen's Bench found that the plaintiffs had substantially complied with the adequate representation requirement - The failure to identify the two plaintiffs was not important because the court had approved the use of pseudonyms, their identities were known to the Government, and they had been examined by counsel for the Government - No prejudice had been caused to the class members because of the delay in bringing the motion - See paragraphs 10 to 11.

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 plaintiffs moved for certification as a class proceeding of an action against the Government of Manitoba, for a declaration "that the funding regime under the Health Services Insurance Act for therapeutic abortion services violated their rights under the Charter", and damages - The considerations included whether there were overarching issues outweighing the advantages achieved by permitting an action to proceed as a class action - The Government argued that there was little benefit to the class to have the good faith issue addressed as part of a class proceeding; that the issue could be addressed without certification; that once the issues were determined, the principle of stare decisis would come into play, and there would be no basis for further litigation on the main issue; and that the case would be a test case - The plaintiffs argued that it would not be satisfactory to proceed with the test case because the issue would not be res judicata, and the other claimants might choose to relitigate the issues on which the plaintiffs might fail - The Manitoba Court of Queen's Bench found that there was no overarching issue that outweighed the benefits of allowing the class action to proceed or that justified refusal of the order for certification - In particular, the court disagreed with the Government's argument that the plaintiffs proceed with a test case - That route was not followed generally without the concurrence of all potential claimants - See paragraphs 13 to 16.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General - The plaintiffs moved for certification as a class proceeding of an action against the Government of Manitoba - The Manitoba Court of Queen's Bench, after finding that it was fair and just that the action be certified as a class action, addressed two procedural matters; namely, notice and discovery on individualized claims - A notice was to be provided to class members giving them an opportunity to opt out of the claim - Moreover, if the plaintiffs were successful, there would be individualized issues necessitating at least some discoveries and evidence at trial for other members of the class - The court stated that "[a] litigation plan will be prepared to address all aspects of the claims" - See paragraph 18.

Cases Noticed:

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201, appld. [para. 3].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324, refd to. [para. 8].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299, refd to. [para. 8].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Neufeld v. Manitoba (2001), 161 Man.R.(2d) 18 (Q.B.), revd. in part (2002), 166 Man.R.(2d) 208; 278 W.A.C. 208 (C.A.), refd to. [para. 8].

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 2006 ABQB 104, dist. [para. 11].

B.B. v. Québec (Procureur général), [1998] R.J.Q. 317 (C.A.), dist. [para. 11].

Solomon v. Smith and Montreal Trust Co. (1987), 49 Man.R.(2d) 252; 45 D.L.R.(4th) 266 (C.A.), dist. [para. 14].

Murphy v. BDO Dunwoody LLP et al., [2006] O.T.C. 630 (Sup. Ct.), refd to. [para. 15].

Canadian Imperial Bank of Commerce v. Deloitte & Touche (2003), 172 O.A.C. 79 (Div. Ct.), refd to. [para. 15].

Winnipeg Mortgage Exchange Ltd. and Winnipeg Mortgage Holdings Ltd., Re (1982), 15 Man.R.(2d) 271 (Q.B. Bktcy.), revd. (1982), 19 Man.R.(2d) 1 (C.A.), refd to. [para. 15].

Ranjoy Sales & Leasing Ltd. v. Winnipeg Mortgage Exchange Ltd. - see Winnipeg Mortgage Exchange Ltd. and Winnipeg Mortgage Holdings Ltd., Re.

Authors and Works Noticed:

Beaudoin, Gérald A., and Mendes, Errol P., The Canadian Charter of Rights and Freedoms (4th Ed. 2005), c. 19, pp. 1376 to 1378 [para. 8].

Branch, Ward K., Class Actions in Canada (Looseleaf), paras. 2.110, 4.945 [para. 15].

Gibson, Dale, Enforcement of the Canadian Charter of Rights and Freedoms, in Beaudoin, Gérald A., and Mendes, Errol P., The Canadian Charter of Rights and Freedoms (4th Ed. 2005), c. 19, pp. 1376 to 1378 [para. 8].

Counsel:

Robert L. Tapper, Q.C., and Chris Wullum, for the plaintiffs;

Deborah L. Carlson, for the defendant.

This motion was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on July 31, 2008.

To continue reading

Request your trial
10 practice notes
  • Constitutional coalescence: substantive equality as a principle of fundamental justice.
    • Canada
    • Ottawa Law Review Vol. 42 No. 3, December 2011
    • December 22, 2011
    ...conclusive that they are beyond dispute." (110) See the class proceeding certification on July 31, 2008: Jane Doe I v Manitoba, 2008 MBQB 217, 232 Man R (2d) (111) See Morgentaler v New Brunswick, 2008 NBQB 258, 336 NBR (2d) 121, aff'd 2009 NBCA 26, 344 NBR (2d) 22, granting Doctor Morgenta......
  • Consumer Class Arbitration in Canada: It’s About Time
    • Canada
    • Irwin Books The Canadian Class Action Review No. 15-1, December 2019
    • December 1, 2019
    ...Representative” Lexpert Special Edition – Litigation (December 2017) at 24. 105 2015 FC 916. 106 McLaughlin, above note 104. 107 2008 MBQB 217. CCAR 15-1.indb 8/6/2019 4:33:31 PM L a R ev ue C a nadienne des r ecour s collectifs | Volume 15 • No 1 157 School Board and Renwick Spence.108 Nev......
  • Trends in Environmental Class Actions in Canada
    • Canada
    • Irwin Books The Canadian Class Action Review No. 15-1, December 2019
    • December 1, 2019
    ...Representative” Lexpert Special Edition – Litigation (December 2017) at 24. 105 2015 FC 916. 106 McLaughlin, above note 104. 107 2008 MBQB 217. CCAR 15-1.indb 8/6/2019 4:33:31 PM L a R ev ue C a nadienne des r ecour s collectifs | Volume 15 • No 1 157 School Board and Renwick Spence.108 Nev......
  • Class Actions and Beauty Pageants: The Need for Carriage Motion Reform in Ontario
    • Canada
    • Irwin Books The Canadian Class Action Review No. 15-1, December 2019
    • December 1, 2019
    ...Representative” Lexpert Special Edition – Litigation (December 2017) at 24. 105 2015 FC 916. 106 McLaughlin, above note 104. 107 2008 MBQB 217. CCAR 15-1.indb 8/6/2019 4:33:31 PM L a R ev ue C a nadienne des r ecour s collectifs | Volume 15 • No 1 157 School Board and Renwick Spence.108 Nev......
  • Request a trial to view additional results
10 books & journal articles
  • Constitutional coalescence: substantive equality as a principle of fundamental justice.
    • Canada
    • Ottawa Law Review Vol. 42 No. 3, December 2011
    • December 22, 2011
    ...conclusive that they are beyond dispute." (110) See the class proceeding certification on July 31, 2008: Jane Doe I v Manitoba, 2008 MBQB 217, 232 Man R (2d) (111) See Morgentaler v New Brunswick, 2008 NBQB 258, 336 NBR (2d) 121, aff'd 2009 NBCA 26, 344 NBR (2d) 22, granting Doctor Morgenta......
  • Trends in Environmental Class Actions in Canada
    • Canada
    • Irwin Books The Canadian Class Action Review No. 15-1, December 2019
    • December 1, 2019
    ...Representative” Lexpert Special Edition – Litigation (December 2017) at 24. 105 2015 FC 916. 106 McLaughlin, above note 104. 107 2008 MBQB 217. CCAR 15-1.indb 8/6/2019 4:33:31 PM L a R ev ue C a nadienne des r ecour s collectifs | Volume 15 • No 1 157 School Board and Renwick Spence.108 Nev......
  • Consumer Class Arbitration in Canada: It’s About Time
    • Canada
    • Irwin Books The Canadian Class Action Review No. 15-1, December 2019
    • December 1, 2019
    ...Representative” Lexpert Special Edition – Litigation (December 2017) at 24. 105 2015 FC 916. 106 McLaughlin, above note 104. 107 2008 MBQB 217. CCAR 15-1.indb 8/6/2019 4:33:31 PM L a R ev ue C a nadienne des r ecour s collectifs | Volume 15 • No 1 157 School Board and Renwick Spence.108 Nev......
  • The Collective Class Action: An Expansion of the Class Action Framework
    • Canada
    • Irwin Books The Canadian Class Action Review No. 15-1, December 2019
    • December 1, 2019
    ...Representative” Lexpert Special Edition – Litigation (December 2017) at 24. 105 2015 FC 916. 106 McLaughlin, above note 104. 107 2008 MBQB 217. CCAR 15-1.indb 8/6/2019 4:33:31 PM L a R ev ue C a nadienne des r ecour s collectifs | Volume 15 • No 1 157 School Board and Renwick Spence.108 Nev......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT