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Class action appeals: a game of snakes & ladders

Trials & Tribulations
|Written By Margaret L. Waddell
Class action appeals: a game of snakes & ladders

The pressing need for legislative reform of appeal routes in class action proceedings was highlighted in the recent Ontario Court of Appeal decision Cavanaugh v. Grenville Christian College. In that case, the Court of Appeal heard and decided only one part of an appeal from a denial of certification, and refused to hear the balance of the appeal, which it sent sliding down the snake’s tail to the Divisional Court.

This case demonstrates that ascertaining the appropriate appeal route for decisions taken in class actions can be convoluted and downright illogical in some cases. In my opinion, the Class Proceedings Act, 1992, should be amended to completely bypass the Divisional Court, so all appeals are brought to the Court of Appeal — either as of right from a final order including a denial of certification, or with leave in respect of interlocutory orders, such as granting certification.

Given the high stakes inevitably involved in class proceedings, more often than not there are multiple appeals and multiple layers of appeal in every case as it makes the long journey to the common issues trial. Every layer of appeal adds to the expense and increases the delays in reaching a final determination of the merits of the case.

Streamlining appeal routes in class proceedings makes eminent good sense, as it would substantially reduce the demands on courtroom time, as well as reducing the expenses for all parties in bringing or responding to appeals.

At the outset of its decision in Cavanaugh, the Court of Appeal identified the current legislative morass in which class action appeals are tangled:

“Appellate jurisdiction in proceedings under the CPA is divided between the Court of Appeal and the Divisional Court. Some appeals go to the Divisional Court under s. 30 of the CPA and others go to this court. The general appeal power provisions in the Courts of Justice Act, R.S.O. 1990, c. C.43  are also relevant when the specific provisions of s. 30 have no application.”

In addition, under s. 6(2) of the Courts of Justice Act, the Court of Appeal has the discretionary jurisdiction to permit an appeal that should properly be heard by the Divisional Court to climb up the ladder, bootstrapped on to a concurrent appeal that is to be heard by the Court of Appeal.

The plaintiffs in Cavanaugh asked the Court of Appeal to exercise that discretion, but it declined to do so. While the appeal court certainly had no statutory obligation to hear the entire appeal from the denial of certification, its refusal to do so resulted in an inefficient use of court and lawyer resources. Particularly, the full certification motion record would have been before the Court of Appeal, and the parties’ facta would have fully addressed all the issues which the appellants were asking the court to determine, either with or without leave.

Since all the issues were fully briefed, it would merely be a matter of the additional court time allotted for oral argument on the second issue, and the judge’s time in deciding that issue that would have to be expended. Instead, the practical result of the Court of Appeal sending half of the appeal back to the Divisional Court is the parties will each have to prepare new appeal books and new facta, three more judges will have to review those materials, hear the argument, and render a decision.

Then, there will likely be yet another foray to the Court of Appeal from whatever the Divisional Court decides. This is by far not the highest and best use of judicial resources, and yet, it is currently what the legislation mandates.

Additionally, the Court of Appeal’s reasons in Cavanaugh could have the unintended result of creating more bifurcated appeals from certification. Particularly, it invites every case where the court finds the requirements of s. 5(1)(a) of the CPA have not been met to include a term in the order from the certification motion that expressly dismisses that aspect of the claim. The plaintiff must then bring an appeal from that aspect of the order directly to the Court of Appeal.

Section 5(1)(a) requires the plaintiff to establish that the pleadings disclose a cause of action. The test for this section engages the same test as a Rule 21 motion to strike a pleading for disclosing no cause of action. In some cases a defendant will bring a separate motion under Rule 21 either before or at the same time as certification.

In other cases, the defendants will simply challenge the adequacy of the pleading under s. 5(1)(a). The substantive effect is the same in either case — if the attack on the pleading is successful, that cause of action cannot proceed. If the attack results in no cause of action remaining against a defendant at all, then the action is at an end as against that party.

The Court of Appeal’s decision in Cavanaugh accepts that in these circumstances the appropriate appellate forum should be determined from the substance of the order (i.e., dismissal of the claim), and accordingly the appeal is to the Court of Appeal when certification is denied against a defendant for failure to meet s. 5(1)(a).

That is what happened in Cavanaugh. The certification judge found no reasonable cause of action had been pleaded against the Incorporated Synod of the Diocese of Ontario, and he ordered the claim be dismissed as against that defendant. The motions judge also denied certification of the action as against the remaining defendants, finding a class action was not the preferable procedure. (I have expressed my views on the correctness of the preferability decision in a prior article.)

The diocese has not brought a motion under Rule 21 of the Rules of Civil Procedure to strike the claim against it. However, the appeal court concluded, effectively, the motions judge had exercised his inherent powers to dismiss the action brought against the diocese, since no motion had been brought seeking that relief, and s. 7 of the CPA did not authorize the judge to make that order. The dismissal of the claim against the diocese was a final order, therefore, the appeal from that part of the certification motion was as of right to the Court of Appeal. Denial of certification of the rest of the plaintiffs’ claim was based upon their failure to meet the requirements of s. 5(1)(d), therefore s. 30(1) of the CPA dictates the appeal is to the Divisional Court, (since the appeal court refused to exercise its discretion under s. 6(2) of the Courts of Justice Act).

Viewed through the lens of judicial efficiency and access to justice for all the parties, it is hard to accept a multi-streamed route to appeals from certification makes sense. There should be one combined appeal to one appellate court from all aspects of a certification motion (whether combined with a Rule 21 motion or not).

There is no logical purpose served in sending different issues to different courts. If one court could hear the whole motion at first instance, then one court should hear the whole appeal. In my view, the Court of Appeal is the appropriate forum for all class action appeals. Excising the Divisional Court layer will avoid duplication of costs, result in a speedier resolution of pretrial motions, and ultimately create a more robust and efficient certification process.

  • RE: Class action appeals: a game of snakes & ladders

    Casey Churko
    If legislative amendment is the solution, then an alternate and preferable response would be to repeal s. 5(1)(a) -- take cause of action out of the certification test. It's redundant. But the best practice is to frame certification orders around s. 8 which does not call for "causes of action" findings or a list of nominate causes of action to be set out in the certification order. Causes of action are not certified - common issues are. Phrases like "The pleading discloses a cause of action against Jack but not Jill" or '"discloses causes of action against Jack in unjust enrichment but not negligence" should not be in the order. A dismissal of certification should not be seen as final, and 'no cause of action' is not final when a cause of action can be but has not yet been plead as required by the case law of the jurisdiction.

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