Negar Hashemi

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 decision addresses a motion by David Peter McMath and Darcy Loyie to stay their motion for leave to appeal a summary judgment decision dismissing their individual claims for additional damages arising from administrative segregation, pending the outcome of other test cases.

The court applies the RJR-MacDonald test for a stay and finds that while there is a serious question to be tried, the applicants failed to establish irreparable harm or that the balance of convenience favours a stay.

The motion is dismissed.

Five bellwether individual issues trials were heard as summary judgment motions to determine whether class members who were placed in administrative segregation in federal penitentiaries were entitled to additional compensatory damages beyond their share of the aggregate damages award.

The court assessed the idiosyncratic harm suffered by each plaintiff, taking into account their pre-existing mental health conditions and other stressors.

The court awarded additional compensatory damages to three plaintiffs ($50,000, $25,000, and $75,000) who proved that their time in segregation caused specific, additional harm.

The claims of the other two plaintiffs were dismissed as they failed to prove causation.

The court declined to award punitive damages in any of the cases.

This is Part 10 of a series of joint decisions in multi-jurisdictional class actions (Ontario and Quebec).

Class Counsel sought further revisions to the Distribution and Individual Issues Protocol (DIIP), specifically to increase the $6,000 costs cap for Track 2 claims to $12,000, and to add a clause about Rule 49 of the Rules of Civil Procedure applying to Track 2/3 claims, and to apply ordinary costs rules for contested Track 2 motions.

The court approved the latter two unopposed requests but denied the request to increase the costs cap, emphasizing proportionality and the need to simplify procedures rather than increase costs.

In a consolidated class action, Class Counsel sought partial indemnity costs for their work on a Distribution and Individual Issues Protocol (DIIP).

The court dismissed the motion, finding that the costs for DIIP development had been prepaid as part of prior counsel fee approvals.

The decision emphasized that DIIP creation is a necessary and collaborative aspect of class proceedings, not an event warranting additional 'success' costs, and clarified that prior judicial statements about future payments referred to costs already accounted for.

This decision, Part 9 of a series in a multi-jurisdictional class action, addresses bitterly contested motions by both the Attorney General of Canada and Class Counsel to revise the Distribution and Individual Issues Protocol (DIIP).

The dispute centered on the scope of reply position statements for Track 2 claims.

Canada sought to limit replies strictly to mitigating factors and causation rebuttal, while Class Counsel argued for broader replies to new issues raised by Canada.

The court denied both parties' specific requests, instead directing a revision to allow Canada a right of sur-reply if a claimant files a reply, and imposing an increased payment to the Manager/Expert in such instances.

The ruling aims to ensure fair, efficient, and proportionate litigation while discouraging procedural abuses by either party.

The plaintiffs in three related class actions regarding administrative segregation brought a consent motion to vary the Distribution and Issues Protocol to address late claims.

The Ontario Superior Court of Justice and the Superior Court of Québec jointly approved the consent order, granting leave for certain class members to file late claims and setting out the process for distributing compensation to those claimants.

This is Part 6 of a joint decision concerning the ongoing administration of multi-jurisdictional class actions (Ontario and Quebec) against the Attorney General of Canada regarding administrative segregation.

The parties brought a joint, consensual motion to amend sections 10.1 and 11.2 of the Distribution and Individual Issues Protocol.

The amendments aim to resolve issues arising from "BRG Crossover" claimants (those with placements in both Ontario and Quebec) and misallocated claimants, by allowing claimants to elect the court (Ontario or Quebec) that will review their claims, provided there is a connection to that jurisdiction.

The court approved the amendments, finding them to be in the best interests of class members and conducive to cost-effective and expeditious claim determination.

This is Part 7 of a joint decision by the Ontario Superior Court of Justice and the Superior Court of Québec concerning multi-jurisdictional class actions (Brazeau, Reddock, Gallone).

The decision addresses a consensual motion by the parties to streamline the payment process for "Track 2, Box 1 only Claims" under the previously approved Distribution and Individual Issues Protocol.

The courts approved an order confirming that payments to class members, class counsel, and the Class Proceedings Fund will be made periodically (every 75 days after a cut-off date) without requiring further motions for confirmation, thereby enhancing judicial economy and access to justice.

The parties in three related class actions regarding administrative segregation sought the courts' approval for consensual amendments to the Distribution and Individual Issues Protocol.

The amendments aimed to streamline the claims process, implement an estates protocol, adjust damages calculations, and expedite the payment of aggregate damages to eligible class members.

The Ontario Superior Court of Justice and the Superior Court of Québec jointly approved the proposed amendments, finding them to be in the best interests of the class members and the most efficient means of adjudicating individual issues.

The Ontario Superior Court of Justice and the Superior Court of Québec issued a joint decision in three related class actions against the Attorney General of Canada.

Following the approval of a Distribution and Individual Issues Protocol, the parties sought approval for minor typographical corrections and various translated administrative documents, including notice forms and claim forms.

The courts approved the corrections and the submitted documents, and directed the parties to submit the claims administrator's terms of appointment once finalized.

The parties in three related class actions regarding administrative segregation in federal penitentiaries sought court approval for a revised Distribution and Individual Issues Protocol, notices, and forms.

The courts approved the documents but revised the proposed opt-out procedure to ensure that all putative class members detained in administrative segregation after December 12, 2016, who had not previously had an opportunity to opt out, were granted a first-time opportunity to do so.

This is Part 2 of a joint decision by the Ontario Superior Court of Justice and the Superior Court of Québec concerning the Brazeau, Reddock, and Gallone class actions.

The courts finalized and approved the Distribution and Individual Issues Protocol, which governs the distribution of the aggregate damages award and the procedures for determining individual issues.

The decision addresses submissions from the parties on a provisional draft protocol and resolves a late-arriving dispute between Class Counsel and the Law Foundation of Ontario regarding funding for the individual issues phase by deleting contentious provisions.

This appeal concerned two class actions (Brazeau and Reddock) brought by federal inmates challenging the legality of administrative segregation practices.

The Court of Appeal for Ontario upheld the motion judge's finding of liability against Canada for breaches of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms, concluding that the prolonged administrative segregation practices constituted cruel and unusual punishment and lacked independent review.

The court found that Canada's failure to alter its policies despite long-standing criticism met the "clear disregard for Charter rights" threshold for awarding damages.

However, the court set aside the motion judge's order in Brazeau to use aggregate damages for structural changes to penal institutions, deeming it an unjustifiable assumption of judicial control and a misinterpretation of the Class Proceedings Act.

The court also overturned the finding of systemic negligence in Reddock, concluding that Charter damages were the more appropriate remedy.

The appeals were allowed in part, with the Brazeau damages remitted for re-determination and the Reddock negligence finding reversed.

Following a successful summary judgment motion in a class action regarding administrative segregation in federal penitentiaries, the representative plaintiff sought partial indemnity costs of $1,235,590.33.

The defendant argued the costs were excessive and duplicative of work done in a concurrent class action involving mentally ill inmates.

The court rejected the defendant's argument that the work was largely duplicative, noting the cases were distinct and the defendant had tenaciously defended both.

The court made a modest reduction of $113,000 for some overlapping settlement discussions and awarded the plaintiff $1,122,590.33 in costs.

The plaintiff brought a summary judgment motion in a class action against the Federal Government regarding the use of prolonged administrative segregation in federal penitentiaries.

The court found that the Federal Government breached the class members' rights under sections 7 and 12 of the Charter by placing them in administrative segregation for more than 15 days, and that these breaches were not saved by section 1.

The court also found the Federal Government liable for systemic negligence.

The court awarded $20 million in aggregate Charter damages for vindication, deterrence, and compensation, to be distributed equally among the class members, while dismissing the claim for class-wide punitive damages.

In a certified class action, the Attorney General of Canada moved for an order adjourning a summary judgment motion sine die, pending the outcome of appeals in two related cases concerning administrative segregation.

Canada argued that an adjournment would prevent duplication of resources, inconsistencies in law, and allow for streamlining of issues, consistent with the Courts of Justice Act.

The plaintiff opposed the adjournment, citing substantial prejudice due to delay after two years of litigation.

The court refused the adjournment, finding that proceeding with the summary judgment motion was more efficient and fair, as the evidentiary record was complete, and the case should be decided based on existing law.

The court emphasized that an adjournment would waste prior work and add to costs, and that justice delayed is justice denied.

The appellant, Niagara College of Applied Arts and Technology, appealed an order of the Superior Court of Justice striking its claim in negligence for pure economic loss against the respondent, The Attorney General of Canada.

The Court of Appeal affirmed the motion judge's finding that Niagara College did not have a proximate relationship with Immigration Canada, and upheld the decision to strike the negligence claim without leave to amend.

The appeal was dismissed with costs awarded to the respondent.

The applicant, a civil liberties organization, brought a public interest challenge against the administrative segregation provisions (sections 31-37) of the Corrections and Conditional Release Act, arguing they violated sections 7, 11(h), and 12 of the Charter.

The court found that the applicant had standing to seek a declaration of invalidity under section 52(1) but not a personal remedy under section 24(1).

The court held that the legislative scheme violated section 7 of the Charter because it failed to provide an independent review of the institutional head's decision to maintain an inmate in administrative segregation, which breached the principles of fundamental justice (procedural fairness) and was not saved by section 1.

The court dismissed the claims under section 11(h) and section 12, finding that segregation is not a punishment and that the scheme, if properly applied with consideration for inmates' mental health, does not constitute cruel and unusual treatment.

The court declared the provisions unconstitutional to the extent they authorize segregation beyond five working days without independent review, but suspended the declaration for 12 months.