Brown v. Canada (Attorney General)

Brown v. Canada (Attorney General)

A case management judge erred in conditionally certifying a class action in the absence of a statement of claim that discloses a viable cause of action; the defendant must have an opportunity to contest viability of reformulated causes of action; the certification motion should be reheard by another judge assigned...

Source-derived case information.

Citation
2013 ONCA 18
Parties
Appellant (plaintiff): Marcia Brown; Appellant (plaintiff): Robert Commanda; Respondent (defendant): The Attorney General of Canada
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
17 January 2013
Procedural Posture
Class Proceeding (civil) / Appeal From Divisional Court Order Setting Aside Conditional Certification and Awarding Costs
Outcome
Appeal dismissed except to the extent of quashing the Divisional Court’s costs order; certification motion to be heard by another judge assigned by the regional senior judge and plaintiffs may amend statement of claim as permitted.
Legal Topics
Certification, Fiduciary Duty, Negligence, Honour of the Crown, Identity Genocide Claim, Case Management, Costs, Procedural Fairness
Source Language
english
Civil Class Actions Aboriginal Law Tort Law Procedural Law Certification Fiduciary Duty Negligence +5 more

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Parties

Marcia Brown

Appellant (plaintiff)

Robert Commanda

Appellant (plaintiff)

The Attorney General of Canada

Respondent (defendant)

Procedural Posture

Class Proceeding (civil) / Appeal From Divisional Court Order Setting Aside Conditional Certification and Awarding Costs

Legal Issues

  1. 1 Whether a judge may conditionally certify a class action absent a pleading that discloses a viable cause of action
  2. 2 Whether the pleaded or reformulated causes of action (fiduciary duty, negligence, identity genocide, breach of Aboriginal rights) disclose a viable cause of action under the plain and obvious test
  3. 3 Whether the certification motion should be reheard by the same case management judge or by another judge

Ratio Decidendi

A case management judge erred in conditionally certifying a class action in the absence of a statement of claim that discloses a viable cause of action; the defendant must have an opportunity to contest viability of reformulated causes of action; the certification motion should be reheard by another judge assigned by the regional senior judge; the Divisional Court’s $25,000 costs award is quashed and s.31(1) factors must be considered in fixing costs.

Court Disposition

Appeal dismissed except to the extent of quashing the Divisional Court’s costs order; certification motion to be heard by another judge assigned by the regional senior judge and plaintiffs may amend statement of claim as permitted.

Orders

  • Quash Divisional Court costs order awarding $25,000 to the respondent.
  • Order that the plaintiffs' motion for certification based on the amended Statement of Claim is to be brought before and heard by another judge as assigned by the regional senior judge.