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Prince Edward Island Court of Appeal dismisses government appeal of class action certification

Certification of suit on discrimination of those with mental disabilities would be first in province

Prince Edward Island Court of Appeal dismisses government appeal of class action certification
Halifax lawyer is working on what could be the first class action case certified in P.E.I.

In dismissing a government appeal of a lower court order to certify a class action suit, Prince Edward Island's highest court wrote that it is time the province’s legislature enact laws that offer better access to justice using this legal option.

“That P.E.I. is the only province without such legislation is not only telling, it is compelling,” Court of Appeal Justice Michele Murphy wrote in a decision earlier this month on King & Dawson v. Government of P.E.I., 2020. “P.E.I. residents should not be denied a “modern comprehensive legislative scheme in which to litigate their claims.’

 “The large number of class action proceedings across Canada is validation of the various provincial class proceedings regimes established across the country,” she wrote. “Without treading on the legislative branch, it needs to be expressed that the time has come for the government to enact legislation which would provide better access to justice for individuals who might benefit from such class proceedings.

This would be the first class action to go forward in P.E.I., says Michael Dull, a Halifax-based lawyer with class action expertise. It has been made a bit more difficult to grapple with given there is no legislation, he says, “so the courts are trying to come up with common law principles in a jurisdiction without any precedence when it comes to class action proceedings.”

Whether the province enacts class proceedings legislation is “something to watch for,” Dull says, but until then, the appeal court ruling on the motions judge’s decision will provide a precedent and roadmap for certifying a class proceeding in the province.

Still, Dull says it will likely take a long time before the case's actual merits get dealt with in the courtroom, but we’re “getting there” slowly.

The three-member Court of Appeal panel upheld a 2019 Supreme Court of P.E.I. ruling in which Justice Gregory Cann considered a motion for a proposed class action in P.E.I. The plaintiffs claimed that their equality rights under the Canadian Charter of Rights and Freedoms were violated by the government of P.E.I.’s policy of excluding people with disabilities caused by mental illness from qualification for benefits through the Disability Supports Program.

Justice Cann was satisfied that the plaintiffs fulfilled the certification requirements and ordered the certification of the proposed class action against the government. He also said the absence of class proceeding legislation was not a bar to certification of this case.

However, while Murphy wrote the main decision, Chief Justice David Jenkins also weighed in, writing “the inaction by the legislative and executive branches of government” to have class action legislation. He noted that “for two decades, spanning a number of administrations, the courts and judiciary have sought, without success, the creation of class action legislation.”

Chief Justice Jenkins added that class action legislation would have facilitated the court proceedings in the King & Dawson v. Government of P.E.I. case. “For the parties, the Supreme Court, and the Court of Appeal, it would have reduced the issues and consequently the expense and costs on the motion.”

The Chief Justice also said such legislation would be “an easy fix that would provide residents of this province a needed tool for meaningful access to justice.

“The absence of class action legislation is a significant lacuna in our Island system of civil justice. Unfortunately, the citizens most denied are those who, due to limited financial means or the small size of their individual claim compared to the large cost of litigation, cannot afford to pursue their grievances against a corporation or government for harm done.“

In determining when it is appropriate to proceed with a class action, Cann referred to the Supreme Court of Canada’s decision in Western Shopping Centres Inc v Dutton, 2001 S.C.C. 46. In that case, the Supreme Court of Canada established four conditions necessary to certify a class action:

  • A class capable of clear definition.
  • Issues of fact or law common to all class members.
  • No conflicting interests in the outcome of common issues.
  • A suitable party to represent the class.

The Supreme Court of Canada, in Hollick v Toronto (City), 2001 S.C.C. 68, added additional criteria - that the pleadings disclose a cause of action.

The nine provinces with class proceedings legislation have codified these five requirements in one form or another to create a certification test that can be used whether a particular suit qualifies.

Justice Cann drafted an appendix in the King & Dawson ruling that sets out a “roadmap” for how certification of class actions in P.E.I. might look like, borrowing heavily from the language in Newfoundland and Labrador’s Class Proceedings Act.

Cann had proposed a test that includes: pleadings that disclose a cause of action; an identifiable class of two or more persons; claims of the class members raising a common issue; evidence that a class proceeding is the preferable procedure for the fair and efficient resolution of the dispute; and, a representative party who would fairly and adequately represent the interests of the class.

The latter would involve producing a plan for the class proceeding that sets out a workable method of advancing the proceeding on behalf of the class.

However, the appeal court in this decision nullified the procedural roadmap that Cann had proposed, saying the roadmap was “made without notice and opportunity” for the parties to make submissions. It ruled that the section of Cann’s decision be “remitted back to the Supreme Court for a redetermination of a procedural roadmap.

“It is an error of law to determine a matter on the merits without giving the parties an opportunity to make submissions,” Justice Murphy wrote. “The motions judge should have invited and allowed the parties an opportunity to make submissions.“

The three-member also ruled on travel time and accommodation costs for out-of-province counsel who have been handling the case. The government had appealed the motion court’s decision to award these costs, saying there was no evidence that the expertise related to class actions in P.E.I. was not available from solicitors in the province. However, the appeal court upheld the motion judge’s ruling on costs.

Justice John Mitchell wrote the portion of the ruling dealing with costs. He acknowledged this is the first time a class action certification motion had come before the Supreme Court of Prince Edward Island since the Supreme Court of Canada clarified the law in Western Canadian Shopping Centres Inc. v. Dutton, 2001.

Justice Mitchell wrote it would appear that there has only been one previous instance in P.E.I. in which a class action was sought and its availability contested, and that was before the S.C.C. Dutton ruling, which has changed the law on class actions. (In Horne v. Canada (Attorney General), [1995] P.E.I., a class action was found to be inappropriate. The lawyers in that case, except for one, have either retired or moved out of the province, Mitchell wrote.

Dull, whose firm Valent Legal has several class actions in various stages, says the appeal court panel decided “in these circumstances, the motions judge could properly draw the inference that there were no counsel with appropriate expertise" in P.E.I. Therefore it was appropriate to hire counsel from Nova Scotia and have related expenses reimbursed.

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