Ottawa Police Association v. Ottawa Police Services Board et al., (2014) 321 O.A.C. 65 (DC)

• Judge: Pardu, McCartney and Hennessy, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 29, 2014
• Jurisdiction: Ontario
• Citations: (2014), 321 O.A.C. 65 (DC);2014 ONSC 1584

Police Assoc. v. Police Services Bd. (2014), 321 O.A.C. 65 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MY.017

Ottawa Police Association (plaintiff/respondent) v. Ottawa Police Services Board, Her Majesty the Queen in Right of Ontario, Omers Administration Corporation and Ontario Public Service Pension Board (defendants/appellants)

(12-DV-1841; 2014 ONSC 1584)

Indexed As: Ottawa Police Association v. Ottawa Police Services Board et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Pardu, McCartney and Hennessy, JJ.

April 29, 2014.

Summary:

The Ottawa Police Association (OPA) brought a motion to be appointed as a representative plaintiff under rule 12.08 on behalf of 74 police officers who transferred from the Ontario Provincial Police to the Ottawa-Carleton Police Services Board, now the Ottawa Police Services Board (OPSB). The underlying action alleged that the defendants made negligent misrepresentations by omitting to fully advise the officers of the pension consequences when they elected to transfer to the OPSB.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 7214, granted the motion in part. The motion judge allowed the action to proceed as a representative proceeding conditionally and ordered that the OPA be substituted by an appropriate person (a member of the group of transferred officers) as the representative plaintiff. The defendants appealed.

The Ontario Divisional Court dismissed the appeal.

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) - Rule 12.08 provided that "Where numerous persons are members of an unincorporated association or trade union and a proceeding under the Class Proceedings Act, 1992, would be an unduly expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to bring a proceeding on behalf of or for the benefit of all" - The appellants argued that rule 12.08 had limited scope and the action had to be brought "on behalf of or for the benefit of all members" - The Ontario Divisional Court rejected the argument - The rule did not explicitly say that the word "all" had to be read to mean all of the members of the union or association - The rule simply required that the representative action was on behalf of or for the benefit of numerous persons - The French version clarified any ambiguity in the interpretation of the English version - In the French text, the proceeding had to be "au profit de toutes" - The word "toutes" referred to "les nombreuses personnes" - If the action had to be for the benefit of all members of the Association, the drafters would have used the word "tous" - See paragraphs 10 to 21.

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 Ottawa Police Association (OPA) brought a motion to be appointed as a representative plaintiff under rule 12.08 on behalf of 74 police officers who transferred from the Ontario Provincial Police to the Ottawa-Carleton Police Services Board, now the Ottawa Police Services Board (OPSB) - The underlying action alleged negligent misrepresentation by omitting to fully advise the officers of the pension consequences when they elected to transfer to the OPSB - The motion judge allowed the action to proceed as a representative proceeding conditionally and ordered that the OPA be substituted by an appropriate person (a member of the group of transferred officers) as the representative plaintiff - The defendants appealed - The defendants submitted that rule 12.08 should be given a limited reading and strictly construed so as only to apply in claims for collectively-held interests or rights - The Ontario Divisional Court stated that the scope of the rule was not defined by the type of claim so much as it was by the three factors included in the rule - So long as those three factors existed, the consideration of whether a representation order should be made was best done within the preferable procedure analysis - In any event, the defendants characterization of this claim as an accumulation of individual or personal claims failed to acknowledge part of the collective benefit sought by the plaintiffs - The plaintiffs argued that the liability questions would be determined on the basis of a duty owed to the group of transferring officers, a finding which would be of collective benefit to the entire association - See paragraphs 22 to 33.

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 Ottawa Police Association (OPA) brought a motion to be appointed as a representative plaintiff under rule 12.08 on behalf of 74 police officers who transferred from the Ontario Provincial Police to the Ottawa-Carleton Police Services Board, now the Ottawa Police Services Board (OPSB) - The underlying action alleged negligent misrepresentation by omitting to fully advise the officers of the pension consequences when they elected to transfer to the OPSB - The motion judge allowed the action to proceed as a representative proceeding conditionally and ordered that the OPA be substituted by an appropriate person (a member of the group of transferred officers) as the representative plaintiff - The defendants appealed - The defendants argued that there was no evidentiary foundation on which to base the finding that a proceeding under the Class Proceedings Act (CPA) would be unduly expensive or inconvenient - The Ontario Divisional Court held that the motion judge did not err in his application of rule 12.08 to this claim - Presumably, the plaintiffs came to the determination of which of the alternate types of class actions to pursue based on a cost and convenience analysis - The motion judge was entitled to take that into consideration when he determined whether a class proceeding was necessary or would be unduly expensive and inconvenient - It was not unreasonable, nor an error in principle, for the motions judge to find that the OPA could manage the action on behalf of its members without the unnecessary cost and inconvenience that would have been imposed on class members under the CPA - See paragraphs 34 to 38.

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 Ottawa Police Association (OPA) brought a motion to be appointed as a representative plaintiff under rule 12.08 on behalf of 74 police officers who transferred from the Ontario Provincial Police to the Ottawa-Carleton Police Services Board, now the Ottawa Police Services Board (OPSB) - The underlying action alleged negligent misrepresentation by omitting to fully advise the officers of the pension consequences when they elected to transfer to the OPSB - The motion judge allowed the action to proceed as a representative proceeding conditionally and ordered that the OPA be substituted by an appropriate person (a member of the group of transferred officers) as the representative plaintiff - The defendants appealed, arguing that the motion judge erred in finding that certain questions were common issues - The Ontario Divisional Court rejected the argument - The motion judge discussed and was alive to the principles applicable to the analysis of common issues, particularly in negligent misrepresentation cases - He made no error in this regard - See paragraphs 46 to 54.

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 Ottawa Police Association (OPA) brought a motion to be appointed as a representative plaintiff under rule 12.08 on behalf of 74 police officers who transferred from the Ontario Provincial Police to the Ottawa-Carleton Police Services Board, now the Ottawa Police Services Board (OPSB) - The underlying action alleged that negligent misrepresentation by omitting to fully advise the officers of the pension consequences when they elected to transfer to the OPSB - The motion judge allowed the action to proceed as a representative proceeding conditionally and ordered that the OPA be substituted by an appropriate person (a member of the group of transferred officers) as the representative plaintiff - The defendants appealed - The defendants argued that the motion judge made palpable and overriding errors in his assessment of the facts in coming to his finding that a representative proceeding was the preferable procedure, both with respect to whether the individual issues overwhelmed the common issues and with respect to his characterization of the issues of damages and detrimental reliance - The Ontario Divisional Court dismissed the appeal - It was open to the motion judge to exercise his discretion in finding that a representative proceeding was the preferable procedure - See paragraphs 55 to 68.

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 Ottawa Police Association (OPA) brought a motion to be appointed as a representative plaintiff under rule 12.08 on behalf of 74 police officers who transferred from the Ontario Provincial Police to the Ottawa-Carleton Police Services Board, now the Ottawa Police Services Board (OPSB) - The underlying action alleged negligent misrepresentation by omitting to fully advise the officers of the pension consequences when they elected to transfer to the OPSB - The motion judge allowed the action to proceed as a representative proceeding conditionally and ordered that the OPA be substituted by an appropriate person (a member of the group of transferred officers) as the representative plaintiff - The defendants appealed - The defendants submitted that the motion judge made a palpable and overriding error in granting the conditional order in the absence of the evidentiary foundation that there existed an appropriate representative plaintiff - The Ontario Divisional Court stated that "The motion judge did not make a decision on a representative plaintiff in the absence of an evidentiary basis. There will still be a judicial determination of the propriety of the proposed representative plaintiff. In this regard, I find that there are such persons within the group who, in all likelihood, would qualify as an appropriate representative plaintiff and it is reasonable for the motion judge to allow the group to bring forward a new, eligible, representative plaintiff. The motion judge made no error by making a conditional order and remaining seized of this outstanding issue" - See paragraphs 39 to 45.

Practice - Topic 266

Persons who can sue and be sued - Legal personality - Unincorporated bodies or associations - [See first and second Practice - Topic 209.3 and Practice - Topic 209.4 ].

Practice - Topic 983

Parties - Representation orders - When available - [See first and second Practice - Topic 209.3 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - [See first Practice - Topic 209.3 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 7].

Fresco v. Canadian Imperial Bank of Commerce (2012), 293 O.A.C. 248; 111 O.R.(3d) 501; 2012 ONCA 444, refd to. [para. 9].

Kelly et al. v. Canada (Attorney General), [2013] O.T.C. Uned. 1220; [2013] 3 C.N.L.R. 333; 2013 ONSC 1220, revd. (2014), 332 O.A.C. 250; 2014 ONCA 92, refd to. [para. 16].

Ginter et al. v. Gardon et al., [2001] O.T.C. 200; 53 O.R.(3d) 489 (Sup. Ct.), refd to. [para. 22].

McGee et al. v. London Life Insurance Co., [2008] O.T.C. Uned. 892 (Sup. Ct.), refd to. [para. 22].

Ryan et al. v. Municipal Employees Retirement Board (Ont.) et al., [2006] O.T.C. 156; 29 C.P.C.(6th) 24 (Sup. Ct.), refd to. [para. 30].

Delicata et al. v. Incorporated Synod of the Diocese of Huron et al., [2011] O.T.C. Uned. 4403; 2011 ONSC 4403, refd to. [para. 30].

Keewatin et al. v. Ontario (Minister of Natural Resources) et al., [2006] O.T.C. 987; 32 C.P.C.(6th) 258, refd to. [para. 30].

Trusksa v. Dziemianczuk, [2008] O.J. No. 615 (Sup. Ct.), refd to. [para. 30].

Payne v. Ontario (Minister of Energy, Science and Technology, [2002] O.J. No. 1450 (Sup. Ct.), refd to. [para. 30].

Graham et al. v. Imperial Parking Canada Corp., [2010] O.T.C. Uned. 4982; 74 B.L.R.(4th) 172; 2010 ONSC 4982, refd to. [para. 42].

6323588 Canada Ltd. v. 709528 Ontario Ltd. et al., [2012] O.T.C. Uned. 2985; 2012 ONSC 2985, refd to. [para. 42].

Kelly et al. v. Canada (Attorney General) (2014), 332 O.A.C. 250; 2014 ONCA 92, refd to. [para. 43].

Nadolny v. Peel (Region), [2009] O.T.C. Uned. N12; 78 C.P.C.(6th) 252 (Sup. Ct.), refd to. [para. 49].

Toms Grain & Cattle Co. et al. v. Arcola (2006), 279 Sask.R 281; 372 W.A.C. 281; 2006 SKCA 20, refd to. [para. 49].

Parker v. Pfizer Canada Inc. et al., [2012] O.T.C. Uned. 3681; 2012 ONSC 3681, refd to. [para. 49].

L.C. et al. v. Grenville Christian College et al., [2012] O.T.C. Uned. 2995; 2012 ONSC 2995, refd to. [para. 49].

Cavanaugh et al. v. Haig Estate et al., [2014] O.A.C. Uned. 109; 2014 ONSC 290 (Div. Ct.), refd to. [para. 49].

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; 2001 SCC 46, refd to. [para. 51].

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al. (2013), 450 N.R. 201; 345 B.C.A.C. 1; 589 W.A.C. 1; 2013 SCC 57, refd to. [para. 51].

Fulawka v. Bank of Nova Scotia (2012), 293 O.A.C. 204; 111 O.R.(3d) 346; 2012 ONCA 443, refd to. [para. 52].

Singer v. Schering-Plough Canada Inc., [2010] O.T.C. Uned. 42; 87 C.P.C.(6th) 276; 2010 ONSC 42, refd to. [para. 52].

Markson v. MBNA Canada Bank (2007), 224 O.A.C. 71; 85 O.R.(3d) 321; 2007 ONCA 334, refd to. [para. 55].

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. 55].

Fischer et al. v. IG Investment Management Ltd. et al. (2013), 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 55].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 57].

Ault et al. v. Canada (Attorney General) et al. (2011), 274 O.A.C. 200; 2011 ONCA 147, refd to. [para. 58].

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. 60].

Dugal et al. v. Manulife Financial Corp. et al. (2014), 317 O.A.C. 384; 2014 ONSC 1347, refd to. [para. 60].

Hickey-Button v. Loyalist College of Applied Arts & Technology (2006), 211 O.A.C. 301; 267 D.L.R.(4th) 601 (C.A.), refd to. [para. 60].

Murphy v. BDO Dunwoody LLP (2006), 32 C.P.C. (6th) 358 (Ont. Sup. Ct.), refd to. [para. 60].

Brown et al. v. Canadian Imperial Bank of Commerce et al., [2012] O.T.C. Uned. 2377; 24 C.P.C.(7th) 251; 2012 ONSC 2377, refd to. [para. 64].

Statutes Noticed:

Rules of Civil Procedure (Ont.) - see Rules of Court (Ont.).

Rules of Court (Ont.), rule 12.08 [para. 10].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 99 to 116 [para. 18].

Counsel:

Christopher C. Rootham, for the plaintiff/respondent;

David A. Stamp and Kevin O'Brien, for the defendants/appellants;

Charles Hofley, for the Ottawa Police Services Board and Lisa Mills;

Judie Im, for Her Majesty the Queen in Right of Ontario.

This appeal was heard on November 6 and 7, 2013, before Pardu, McCartney and Hennessy, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was delivered by Hennessy, J., and was released on April 29, 2014.