Subodh Singh Bharati

The Court of Appeal for Ontario dismissed an appeal by the Attorney General of Canada from a certification order of a class action brought by immigration detainees.

Between May 2016 and July 2023, the Canada Border Services Agency placed approximately 8,360 immigration detainees in provincial and territorial prisons instead of Immigration Holding Centers.

The respondents challenged this practice as violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and as constituting negligence.

The motion judge certified the class action, finding that the Charter and negligence claims disclosed reasonable causes of action and that common issues existed.

The appellate court upheld the certification, finding no palpable and overriding errors in the motion judge's analysis.

The plaintiff sought costs on a substantial indemnity basis or, alternatively, on a partial indemnity basis, following the dismissal of the defendant's motion for summary judgment.

The court declined substantial indemnity due to a lack of "reprehensible conduct" but awarded partial indemnity costs, finding the amount reasonable given the complexity and importance of the motion, proportionality, and access to justice.