G. Alan Meikle

The appellant government appealed a decision upholding the certification of a class action brought by elderly residents of long-term care facilities.

The residents alleged the government artificially inflated accommodation charges to subsidize medical expenses, claiming breach of fiduciary duty, negligence, bad faith, unjust enrichment, and a section 15 Charter violation.

The Supreme Court of Canada allowed the appeal in part, striking the claims for breach of fiduciary duty, negligence, and bad faith, finding that the government did not owe a fiduciary duty or a private duty of care to the residents in these circumstances.

However, the Court allowed the unjust enrichment and Charter claims to proceed to trial, and declined to decertify the class action.

The applicant brought a motion for reconsideration of an application for leave to appeal, arguing that the Court lacked jurisdiction to dismiss the application because one of the panel judges had retired before the judgment was released.

The Supreme Court of Canada dismissed the motion, holding that section 41.1(1) of the Judges Act explicitly permits a retired judge to continue participating in judgments for up to six months after retirement.

Since the judgment was issued within this six-month window, the retired judge was entitled to participate.