January 17th, 2013
The Court of Appeal's decision in Brown vs. Canada (Attorney General) addressed the question of the limits of the case management judge's powers in discerning a cause of action in the face of poor pleadings. This proposed class action against the federal crown arose out of a practice in Ontario where welfare authorities removed aboriginal children from their families and communities and placed them with non-aboriginal families. The central claim was that Canada had committed actionable wrongs by entering into an agreement in 1965 whereby Canada delegated to Ontario its responsibility as guardian, trustee, protector, and fiduciary of Aboriginal persons.
The pleading was poorly drafted and did not allow for the easy identification of causes of action. The case management judge held that the pleaded causes of action he was able to discern did not meet the plain and obvious test. The statement of claim did not disclose viable causes of action and no action could be grounded on the entering into of the 1965 Agreement. However, the case management judge held that it was not plain and obvious that there was not a viable cause of action in breach of fiduciary duty or negligence. The plaintiffs were granted leave to amend their statement of claim to properly plead the action in negligence and for breach of fiduciary duty. The case management judge then concluded that once properly pleaded, the requirements of s. 5(1)(a) of the CPA would be satisfied. The case management judge also adjusted the class definition and common issues such that proper pleading would ensure that the rest of the criteria for certification would be met.
The Court of Appeal, affirming the Divisional Court's decision, rejected the notion that a class proceeding can be certified conditionally in the absence of a statement of claim that discloses a viable cause of action. The identification of a cause of action is fundamental. Rosenberg JA, writing for the Court, noted that without knowing the cause of action being pleaded, it is impossible for a defendant to meaningfully respond to the application for certification. By granting a conditional certification and allowing the action to be certified upon the delivery of an amended pleading, the defendants were not provided with the opportunity to fully address the certification criteria. The Court noted that the case management judge “plays an important role in guiding the evolution of the proceeding. But, certifying a class action in the absence of a statement of claim that discloses viable causes of action is not case management”.
The Court of Appeal also agreed with the Divisional Court that the further certification motion be brought before another judge. Although the case management judge did not specifically hold that there was a viable cause of action, on balance his reasons suggested that such a determination had been made. The Court specifically stated that, “in some respects, it is the poor manner in which the causes of action were pleaded by the appellants that has led to this difficulty”. Nonetheless, the defendants were entitled to an opportunity to show that the causes of action were not viable and judges cannot sit in appeal of their own decisions. It was not appropriate or required for the same case management judge to hear the further certification motion. As a result, a new judge was to be assigned to hear the further certification motion. It was left to the case management judge to decide whether it would be efficient and provide the necessary continuity for him to continue as case management judge if the action was certified.
The framing of a cause of action in a class action is fundamental to the determinations that can be made on certification and by the case management judge. While class actions and common issues can evolve throughout the course of an action, the action must be grounded in a properly plead cause of action. It is not open to the case management judge to conditionally certify the class proceeding upon the delivery of an amended statement of claim.
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