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Gatekeeping defined

Class Acts
|Written By Kirk Baert
Gatekeeping defined

This month, Ontario Superior Court Justice Paul Perell certified a class proceeding under the Class Proceedings Act on behalf of lawyers and paralegals who authored legal documents they claim were published without permission by Thomson Reuters Corp. This decision highlights the trajectory of certification motion case law as courts recognize certification for what it was intended to be: merely a procedural step designed to ensure that an action conforms to the requirements set out in the CPA.

The motion judge’s role as gatekeeper of the court is limited to screening claims that are not appropriate for class action treatment. Certification is merely “a technical and procedural phenomenon,” and the court’s gatekeeper role is limited to ensuring that these technical and procedural elements are satisfied. Perell’s decision suggests it is high time for defence counsel to recognize that certification is not the proper venue for a discussion of the merits of a class action, and in the interests of access to justice and judicial economy, the parties should work together and with the court to expedite certification in order to substantially advance the proceedings.

In Waldman v. Thomson Reuters Corp., the representative plaintiff claimed compensation for copyright infringement arising from the reproduction of court documents authored by lawyers on Thomson’s electronic database known as “Litigator.” Waldman proposed that Thomson infringed the copyright of class members by making available, without their consent and for a fee, copies of these court documents authored by lawyers and law firms.

The defendant, Thomson Reuters, raised an array of substantive defences and challenged the proposed representative plaintiff on almost every aspect of certification, including some new ones. Perell relied on the accepted principle that the question to be determined at certification is not whether the plaintiff’s claim is likely to succeed on the merits, but whether the claim can be appropriately prosecuted as a class proceeding. Relying on Hollick v. Toronto (City), Perell emphasized the procedural nature of the certification motion, holding that substantive defences, while relevant to the determination of the merits of the action, are not pertinent at this procedural stage.

Nevertheless, although not a test on the merits, the certification motion is an important screening mechanism for claims that are not appropriate for class actions. This careful screening process highlights the gatekeeping role of the court to ensure that a claim meets the technical and procedural elements of certification.

By way of attack on the proposed representative plaintiff’s claim, the defendant argued that the motion judge’s role as “gatekeeper” required him to screen claims that have negative social utility and little interest from class members. Thomson argued that the reproduction of court materials advances the open court principle, a fundamental principle of democracy, and the administration of justice.

Conversely, Thomson argued the copyright infringement claim is inimical to public interest, detrimental to the advancement of law, an impediment to the administration of justice, an obstacle to the education of the legal profession, and inconsistent with the collegiality and professionalism of the bar.

Despite recognizing the strength of these policy defences, Perell dispensed with the defendant’s “gatekeeper” argument in short order. While the judge acknowledged that the certification motion is an important screening mechanism to protect a defendant from being unjustifiable embroiled in complex and costly litigation by screening claims that are not appropriate for class actions, he affirmed that the court’s gatekeeping function is both “modest and limited.”

On the certification motion, the court must not assess the merits of the plaintiff’s claim or give opinions about the social utility of the class action. The court’s gatekeeper and screening function is limited to determining whether the certification criteria are satisfied — nothing more.

It was never intended that judges make decisions about the social utility of proposed class proceedings, or which ones are “good” and which ones are “bad.” Nor was it ever intended that judges look at the proposed case and see if “enough people have complained about the issue to make a class action worthwhile.” The certification test contains the tools that judges need to weed out cases that are not suitable for class action treatment. They do not need to resort to, or invent other tools, especially at the request of defence counsel.

Perell’s decision exemplifies the appropriateness of certification notwithstanding the recognition of myriad substantive defences and individual issues to be resolved at or beyond the common issues trial. Thomson advanced a number of defences to copyright infringement at the certification motion, including public policy, consent, fair dealing, and freedom of expression under the Charter of Rights and Freedoms.

Simply put, Perell held that these defences are not pertinent to whether, as a procedural matter, the action should be certified. Thomson further submitted that the action would break down into a long series of discrete trials with multiple parties prosecuting complex factual and legal issues. Quoting Justice Joan Lax in Sauer v. Canada (Attorney General), Perell rejected the “ghostly spectre of unmanageability” and recognized that many of the purported individual issues will vanish in the daylight of case management, the direction of the trial judge, or agreement of the parties. This is often the case, and this argument is, for the most part, nothing more than overblown rhetoric on the part of defence counsel.

Waldman definitively characterizes the certification motion as merely a procedural hurdle. Perell recognized that the “gatekeeper role” of the motion judge is limited to procedural screening, and that a claim ought to be certified, notwithstanding the recognition of potential defences and significant individual issues to be resolved at or after the common issues trial. This characterization of the certification test is in the best interests of both the plaintiff and the defendant, as it will result in lower costs to the parties as well as the expeditious resolution of this stage of the proceedings. Which is what the drafters intended. Nothing more.

Thomson Reuters has said it will appeal the certification ruling. Read the Law Times[em] news article here.

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