G20 Class Action Fails Certification

When the Class Proceedings Act was introduced in Ontario in 1992, the major underlying rational was that mass tort claims could be dealt with more effectively and efficiently. Litigating these multiple claims collectively would save the courts time and money. Class claims would also be more economical for the parties because they would not need to re-litigate the same facts repeatedly in several forums.

For plaintiffs in particular, the ability to join claims together where the damages would not independently justify securing counsel gave rise to the possibility that members of the public could access the courts in ways that would be impossible through independent claims. An extension of this possibility includes using class proceedings to address issues of public interest to address social wrongs.

The Ontario Superior Court of Justice recently declined certification for a class action in Good v. Toronto Police Services Board, over police action during the G20 Summit in Toronto in June 2010. The $45 million lawsuit focused on police arrests and detentions in six locations in Toronto, including the use of kettling tactics. Justice Horkins found the action to be problematic due to the lack of commonality within the proposed class, and some of the flaws with the causes of action.

The plaintiff had proposed six subclasses to the proposed class, each based on police action in different locations, as well as a residual subclass for those arrested outside of these locations, and an overlapping subclass for all individuals held at the Eastern Avenue Detention Centre. Justice Horkins found this approach to be highly unusual, and did not find any authorities supporting one class for eight distinct groups of claims who have no common links between the groups.

The plaintiffs attempted to frame the commonality for the proposed class as a form of systemic negligence by the Integrated Security Unit (“ISU”) established by the RCMP, which included ISU Partners from local police and military.

However, Justice Horkins found they were unable to demonstrate that the police owed them a private law duty of care in this manner based on the pleadings, which did not claim “a duty owed by a specific police officer to a putative class member.” Although the custody and detention claims did fit into an established private law duty, it did not flow clearly from the claimed systemic negligence cause of action because of its focus on the ISU instead of specific police officers.

Justice Horkins applied the Anns/Cooper test to determine whether a new duty of care should be established as plead. But the Police Services Act and Royal Canadian Mounted Police Act create a duty to the public at large, and not the individual members of that public. Justice Horkins indicated that the ISU did not have its own legal entity or any statutory authority, and the OPP, RCMP and Peel police had no jurisdiction to police in Toronto, which would frustrate the false imprisonment, conversion and trespass to chattels, and assault and battery causes of action.

The lack of specification over the claim of alleged Charter violations did not specify which defendants where responsible, and claimed “joint and several liability.” Justice Horkins clarified that Charter damages are a public law remedy that is distinct from public torts.

There were major flaws over the plaintiff’s certification motion was how the class was structured, and the cause of action framed. The plaintiffs may have had greater success had they launched eight separate class actions, which would have also addressed the representative plaintiff issue. The representative plaintiff on this motion did not actually experience all of the events claimed in the causes of action.

Law enforcement may not have all had statutory authority to operate in Toronto, and the joint task force was initiated out of a perceived necessity in dealing with the large numbers of people involved. This same flexibility and latitude was not afforded to the plaintiffs in their certification.

Justice Horkins cited the use of black bloc tactic to suggest that protesters who could be included in the class may not have been entirely blameworthy. The G20 was a highly complex event, with many unknown or classified facts, and incidents of officers deliberately obscuring or hiding information.

In these circumstances it’s quite difficult to envision how a class proceedings would succeed on certification without some latitude from the court, requiring further amendments once greater disclosure was provided. At the very least, it would provide another yet another venue for scrutiny of what nearly everyone concedes was a poorly handled situation. The Good certification motion also highlights the difficulties that future class actions will have in attempting to address large-scale public interest social advocacy.

The G20 is of enormous public interest, and the topic of ongoing inquiries and investigations. The actions of government and law enforcement around the event have not been transparent, and many questions remain unanswered. It is difficult to reconcile the possibility that government and law enforcement worked in conjunction deliberately knowing Charter violations would occur, and having complete impunity from such decisions.

Comments

  1. Note that the court granted certification on appeal, with the court stating,

    [45] It should also be remembered, on this point, that in order for an issue to be common, it does not have to resolve all issues that may exist in terms of establishing liability and damages. It need only advance the claim of each class member to a sufficient extent that it warrants being done on a collective, as opposed to individual, basis. The claim here is, in essence, the equivalent of a claim of a systemic wrong. As noted recently in Dennis v. Ontario Lottery and Gaming Corp. (2013), 2013 ONCA 501 (CanLII), 116 O.R. (3d) 321 (C.A.) the case law offers many examples where class actions have been certified to determine claims where all class members are exposed to the same conduct of the defendant. The observation of Sharpe J.A., at para. 53, is equally applicable to the case here:

    When a systemic wrong causes harm to an undifferentiated class of individuals, it can be entirely proper to use a class proceeding that focuses on the alleged wrong. The determination of significant elements of the claims of individual class members can be decided on a class-wide basis, and individual issues relating to issues such as causation and damages can be dealt with later on an individual basis, especially when the assessment of damages can be accomplished by application of a simple formula.

    [48] This is a very important aspect of the first common issue. It is apparent that much time and emphasis was placed by the respondent before the motion judge on the activities of the Black Bloc. Indeed, the motion judge made some extensive reference to the Black Bloc and the activities in which it was believed that they had engaged during the course of the G20 summit. However, none of that activity is relevant to the first common issue because it is alleged that the command order was not given with the reasonable belief that all of the persons to be detained were members of the Black Bloc. To the contrary, as I have said, it is alleged that the command order was given without regard to the specific conduct of the persons being detained.

    [49] On this point, it is important to remember that the police cannot sweep up scores of people just in the hope that one of the persons captured is a person who they believe is engaged in criminal activity. The police are only lawfully able to detain those persons who meet the Mann test, at para. 34:

    The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

    The same is true in terms of persons who are arrested except that the test for an arrest is even higher than it is for a detention. As already pointed out, the two tests share both an objective and a subjective element.

    A proposed settlement was reached recently, for an amount up to $16,500,000.00 CAD. Before the settlement can be effective, it must be reviewed and approved by the court. The hearing to review the proposed settlement is currently scheduled for October 19, 2020 at 10:00 a.m. at Osgoode Hall, 130 Queen Street West, Toronto, Courtroom 5.