COURT OF APPEAL FOR ONTARIO DATE: 20210526 DOCKET: C68470

Rouleau, Benotto and Thorburn JJ.A.

BETWEEN

Robin Cirillo Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario Defendant (Respondent)

Counsel: Kirk M. Baert, Celeste Poltak, Charles Hatt, Scott C. Hutchison and Lauren Mills Taylor, for the appellant Christopher A. Wayland, Jeffrey Claydon and S. Zachary Green, for the respondent

Heard: February 1 and 2, 2021 by video conference

On appeal from the orders of Justice Edward M. Morgan of the Superior Court of Justice, dated May 23, 2019 and June 26, 2020, with reasons reported at 2019 ONSC 3066 and 2020 ONSC 3983.

Benotto J.A.:

1The appellant, Robin Cirillo, sought to certify a class proceeding claiming redress for the Crown’s failure to hold timely bail hearings for accused persons. She based her claims as a representative plaintiff on negligence, breach of fiduciary duty and rights under the Charter of Rights and Freedoms. The motion judge dismissed the motion for certification. She appeals the order to this Court. She also appeals a second order dealing with the application of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (“CLPA”).

2I would dismiss the appeal. The proposed class action does not meet the requirements of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). There is no cause of action in negligence, as the claim attacks core policy decisions insulated from tort liability. The appellant did not raise the fiduciary duty issue in written or oral argument. The Charter claims arise from a purported right to a bail hearing within 24 hours of arrest. Whether or not this right exists, the proposed class definition is flawed, there are no common issues, and a class action is not the preferable procedure. It is unnecessary to determine whether certification of the negligence claims would also be barred by s.11 of the CLPA.

I. Facts

(1) Background

3The appellant was arrested on the evening of May 28, 2017 following an altercation with her ex-spouse during which she allegedly brandished a butter knife. No one was injured.

4The appellant was detained in a holding cell at the police station until the next morning when she was taken to the courthouse. She says she arrived at approximately 12:30 p.m. She was expecting to be released on consent. At 2:47 p.m., when the matter was placed on the court docket, duty counsel advised the court that the appellant’s matter could not proceed because sureties were being interviewed. The justice of the peace then began a contested bail hearing in another matter.

5The contested bail hearing was interrupted at 3:25 p.m. by two offers from other courts to traverse matters. There was no indication that duty counsel was ready to proceed with the appellant’s hearing. Nor was there a request to have her matter traversed.

6The justice of the peace called the matter at around 5:24 p.m. Duty counsel advised the court that this was to be a consent release. She argued that the court was without jurisdiction to adjourn the matter, since neither counsel requested an adjournment, and that a lack of judicial resources should not be a reason for an adjournment. Duty counsel conceded that this was the earliest the matter could proceed. The justice of the peace rejected duty counsel’s submissions and adjourned court for the day, noting that there had been ample time for the hearing and that the court was simply out of time for the day.

7The appellant was transported to detention and returned to the court the next day. She was released on consent with multiple conditions and surety bail.

(2) The proposed class action

8The appellant commenced this action on behalf of herself and the following persons:

[A]ll … persons who were arrested and detained for a period of more than 24 hours prior to any Bail Hearing being available as a result of:

(a) the matter not being reached;

(b) transportation, or lack thereof, from detention to bail hearing;

(c) interpretive services not present at the bail hearing;

(d) the accused not having the opportunity to speak with counsel prior to arriving at the bail hearing; or

(f) the Crown not being willing to proceed with a hearing;

for the time period of January 1, 2000 to the present, but excluding individuals charged with an offence mentioned in s. 469 of the Criminal Code.

9The appellant challenges what she describes as the Crown’s operational failure in carrying out its constitutional and statutory duty to ensure a bail hearing within 24 hours, as required by the Criminal Code and the Charter. She says that the respondent has mismanaged the bail system, failed to provide the system with adequate resources, and has promulgated policies for Crown prosecutors that have had the effect of increasing the number of people in remand. She claims that the Crown’s actions constitute systemic negligence against the putative class members. In addition, she argues that the actions of the respondent violated the putative class members’ ss. 7, 9, 11(d), 11(e), and 12 Charter rights.

10The appellant seeks declaratory relief, including declaratory relief for negligence and breach of Charter rights. For instance, she seeks a declaration that the respondent is liable “for the damages caused by its breach of its common law duty in relation to the operation, management, administration, supervision, funding and control of bail hearings in Ontario”. She also seeks general and punitive damages.

(3) Decisions below

(a) Certification

11The motion judge found that certification should be denied because: (i) the pleadings did not disclose a cause of action in negligence as the claims are not justiciable; (ii) it is plain and obvious that the claims based on breach of fiduciary duty have no prospect of success; (iii) the appellant’s claims for breach of Charter rights were not common to class members; and (iv) a class proceeding was not the preferable procedure for resolution of the class members’ claims.

12With respect to the appellant’s claims of negligence and breach of fiduciary duty, the motion judge first concluded that there could be no cause of action against the Crown in its prosecutorial capacity, as the immunity of the Crown as prosecutor (except for malicious prosecution) is “deeply entrenched” in law. As the claims could not be aimed at the Crown’s actual handling of bail proceedings, the causes of action must be aimed at broader decisions related to staffing and resource allocation decisions. Such claims require the court to go outside of its institutional competence.

13Relying on Phaneuf v. Ontario, 2010 ONCA 901, 104 O.R. (3d) 392, the motion judge concluded that underfunding alone cannot create a civil cause of action. He also noted that the impugned government actions were “core policy decisions”, as defined in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45. As a result, the respondent is immune from liability in negligence and the negligence claim is doomed to fail.

14The motion judge held that the fiduciary claims were also doomed to fail. The issues raised by the appellant “provide[d] no basis for fiduciary duties as they do not require that any one vulnerable individual be favoured over another”.

15Finally, the motion judge concluded that the only possible cause of action pleaded was for breach of Charter rights. However, he concluded that there were no common issues to be certified. The class needed to share not simply a common court infrastructure but a common experience of having a specific Charter right violated. In this case, that would be difficult to demonstrate given that the Charter breaches alleged (ss. 7, 9, 11(d), 11(e), and 12) all “share a common thread of reasonableness” and that reasonableness is “a difficult standard” to assess as a common issue because the analysis is so fact dependent.

16The motion judge outlined the potential for multiple causes of the delay in the appellant’s bail hearing. The delay could be attributed to the Toronto Police Service (for the delay in transportation), the judge (for adjourning the matter), and duty counsel (who needed more time to prepare the appellant’s sureties). As a result, the motion judge found that the Charter claims required an individualized assessment of each case and therefore could not be certified as a common issue.

17Having found that there were no common issues, the motion judge found that the proposed class action was not the preferable procedure. He also found that it is “in doubt” whether there is an identifiable class and questioned whether the plaintiff was a suitable representative plaintiff.

(b) Divisional Court Appeal & the CLPA

18Ms. Cirillo appealed the motion judge’s certification decision to the Divisional Court. The week after she served her notice of appeal, the CLPA came into force. The Crown relied on ss. 11(4) and (5) of the CLPA in its responding factum on appeal to argue that certification of the negligence claims was now statute barred. Section 11(4) provides:

(4) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter.

Section 11(5) defines the term “policy matter”:

(5) For the purposes of subsection (4), a policy matter includes,

(a) the creation, design, establishment, redesign or modification of a program, project or other initiative, including,

(i) the terms, scope or features of the program, project or other initiative,

(ii) the eligibility or exclusion of any person or entity or class of persons or entities to participate in the program, project or other initiative, or the requirements or limits of such participation, or

(iii) limits on the duration of the program, project or other initiative, including any discretionary right to terminate or amend the operation of the program, project or other initiative;

(b) the funding of a program, project or other initiative, including,

(i) providing or ceasing to provide such funding,

(ii) increasing or reducing the amount of funding provided,

(iii) including, not including, amending or removing any terms or conditions in relation to such funding, or

(iv) reducing or cancelling any funding previously provided or committed in support of the program, project or other initiative;

(c) the manner in which a program, project or other initiative is carried out, including,

(i) the carrying out, on behalf of the Crown, of some or all of a program, project or other initiative by another person or entity, including a Crown agency, Crown corporation, transfer payment recipient or independent contractor,

(ii) the terms and conditions under which the person or entity will carry out such activities,

(iii) the Crown’s degree of supervision or control over the person or entity in relation to such activities, or

(iv) the existence or content of any policies, management procedures or oversight mechanisms concerning the program, project or other initiative;

(d) the termination of a program, project or other initiative, including the amount of notice or other relief to be provided to affected members of the public as a result of the termination;

(e) the making of such regulatory decisions as may be prescribed; and

(f) any other policy matter that may be prescribed.

19The Crown also relied on s. 31(4) of the CLPA, which provides for the retroactive extinguishment of claims under s. 11. This would have caused the claim to have failed at the first requirement for certification in s. 5(1)(a) of the CPA.

20The Divisional Court remitted the question of whether the CLPA was a bar to certification of the negligence claims to the motion judge so that all the issues could eventually be considered together by the same panel on appeal.

(c) Re-hearing on Crown Immunity

21Relying on his original findings of fact, the motion judge held that the impugned decisions were “core policy decisions” and, as a result, ss. 11(4) and (5) of the CLPA applied to the appellant’s certification motion.

22During the hearing, both parties agreed that ss. 11(4) and (5) do not represent a substantial change in the common law on Crown immunity. However, the respondent submitted that the new sections “codify and more clearly define” the types of decisions for which the Crown is immune.

23The motion judge chose not to opine on whether the CLPA broadened the scope of Crown immunity from the common law and whether ss. 11(4) and (5) of the CLPA violate s. 96 of the Constitution Act, 1867, because it was unnecessary to do so. He already concluded that the impugned decisions were policy decisions under the common law before the enactment of the CLPA, and nothing in the CLPA affected this conclusion.

24The appellant appealed the CLPA decision to this court. Nordheimer J.A. granted the request to consolidate the appellant’s Divisional Court certification appeal and her CLPA appeal so that this court could hear both appeals together.

II. Positions of the Parties

The Appellant

25The appellant alleges that the motion judge made five key errors in his reasons:

• The motion judge erred in holding that the statement of claim did not disclose a claim for negligence. In reaching that conclusion, he made several errors, including that he mischaracterized the claims as attacking core policy decisions and failed to consider whether the causes of action arose from Crown decisions made in bad faith.
• The motion judge erred by finding that the CLPA immunized the respondent from liability without considering whether the immunity was vitiated by s. 17 of the CLPA, which deals with claims of bad faith.
• The motion judge erred in holding that there was no common issue for the Charter claim.
• The motion judge made a palpable and overriding error in finding that a class proceeding would not be the preferable procedure for resolution of the claims.

26The appellant also argued that the motion judge made merits determinations regarding the tenability of the appellant’s personal claim. I address this at the conclusion of my reasons.

27The appellant’s amended notice of appeal purports to appeal the motion judge’s holding on fiduciary duty, but since she made no written or oral submissions on this issue, I understand that she has effectively abandoned it.

The Respondent

28The respondent submits that, even though the bar for certification is low, the motion judge was correct to dismiss the certification motion. The Crown submits that there is no tenable cause of action. The negligence claims attack core policy decisions. The premise on which the appellant’s Charter and negligence claims are based – that there is a “right to” a bail “hearing” within 24 hours – is flawed. Furthermore, there is no identifiable class. Nor are there any common issues, and for that reason, a class action is not the preferable procedure.

III. Issues

29The main issue for this court is whether the criteria in s. 5(1) of the CPA have been satisfied.

IV. Analysis

30To be certified as a class proceeding, the claim must comply with s. 5(1) of the CPA. Under s. 5(1) of the CPA, in order to be certified as a class action the plaintiff must demonstrate that:

(a) the pleadings or the notice of application disclose a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

31In this case, there is a dispute about the criteria under (a) through (d). I will deal with each of those criteria.

(a) Section 5(1)(a): Cause of action

32Section 5(1)(a) of the CPA requires that the pleadings disclose a cause of action. The certification requirement under s. 5(1)(a) is the same as r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The pleadings cannot form the basis of a claim if it is “plain and obvious” that they do not disclose a cause of action. The causes of action are in negligence and breach of Charter rights.

(i) Negligence

33The appellant’s pleading alleges that the Crown owes a duty of care to criminal accused and must “manage bail court volumes to avoid known overcrowding of dockets or provide sufficient resources to address high volume of dockets”, “provide timely transportation from detention to Bail Hearings”, “establish Bail Hearings proximate to the location of Class members’ arrest and detention”, “pre-arrange necessary interpretation services for Class members”, and “provide Class members with contact to counsel prior to arrival at a Bail Hearing”.

34The appellant alleges that the respondent has failed to meet the standard of care, because it has failed to provide adequate resources to bail hearings, which “guarantees the volume of bail hearings cannot be heard in a timely manner”. It has also failed to provide: (1) adequate transportation to transport putative class members to bail hearings; (2) adequate interpretation services; and (3) counsel access to putative class members prior to their arrival at bail court. In addition, the appellant alleges that the respondent has breached its standard of care by over-relying on sureties and requiring their attendance at bail hearings.

35The motion judge determined these claims were core policy decisions and thus could not ground a negligence claim.

36The appellant submits that the motion judge erred in concluding that these claims relate to core policy decisions. Rather, she says the allegations relate to operational decisions, not policy choices.

37I do not agree. The claims on their face relate to core policy decisions. Contrary to the appellant’s submission, further evidence on this issue is unnecessary.

38The Supreme Court has described the type of policy decisions that cannot ground an action in tort in Imperial Tobacco, at para. 87:

Instead of defining protected policy decisions negatively, as “not operational”, [they are defined] positively as discretionary legislative or administrative decisions and conduct that are grounded in social, economic, and political considerations. Generally, policy decisions are made by legislators or officers whose official responsibility requires them to assess and balance public policy considerations. The decision is a considered decision that represents a “policy” in the sense of a general rule or approach, applied to a particular situation. It represents “a course or principle of action adopted or proposed by a government”: New Oxford Dictionary of English (1998), at p. 1434. When judges are faced with such a course or principle of action adopted by a government, they generally will find the matter to be a policy decision. The weighing of social, economic, and political considerations to arrive at a course or principle of action is the proper role of government, not the courts. For this reason, decisions and conduct based on these considerations cannot ground an action in tort. [Emphasis added.]

39In Imperial Tobacco, the court moved away from the stark dichotomy between policy/operational decisions in favour of a more principled test. Referring back to Imperial Tobacco, the court in Hinse v. Canada, 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 23, confirmed the nature of core policy decisions that are protected from suit:

… [I]t is not helpful to posit a stark dichotomy between policy decisions and operational decisions, or to define policy decisions negatively as decisions that are not “operational” decisions: paras. 84-86. Although it refrained from establishing a black-and-white test, the Court concluded that core policy government decisions that are protected from suit are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith”.

40The negligence claims against the respondent in this proposed class action are clearly aimed at core policy decisions. They relate to resource allocation for bail hearings and staffing. The supporting material filed on the motion refers to the adequacy of “physical court space” and the need to build (instead of to renovate) courthouses. The claims focus on the role of government wielding its executive authority to determine the allocation and adequacy of resources devoted to the criminal justice system.

41The motion judge described the nature and breadth of the negligence claims, concluding the appellant challenged core policy decisions:

For a litigant to seek redress for the government's resource decisions on a province-wide basis, to bring an action that requires a court to delve into the propriety and efficiency of those decisions, is to go outside the court's institutional competence….

The sheer magnitude of this class action, its design in alleging liability for policy decisions at a high level, its direct impugning of the Province’s budgetary process, makes it legally untenable. It raises causes of action that do not exist and encounters Crown immunities that apply to these kinds of wide-ranging policy decisions. They are in the nature of “core policy decisions” – i.e. “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith” – and are protected from suit. [Citations omitted.]

42The appellant alleges that the motion judge erred by inserting an analysis of resource allocation and underfunding into the proximity stage of the Anns analysis instead of considering them at the second residual policy stage of the Anns test. In my view, this makes no practical difference in this case. At whatever stage policy immunity is considered, the result is the same. The motion judge did not err when he concluded that the claim implicated core policy decisions and as such, there could be no claim in negligence.

43The appellant has submitted that the motion judge failed to consider that the operational failures were taken in bad faith. This is not correct. The motion judge correctly found that bad faith was not alleged in the pleadings and no particulars were pleaded. Further, the appellant’s witnesses acknowledged that there was no allegation of bad faith.

44I agree with the motion judge that it is plain and obvious that the claims in negligence do not disclose a cause of action.

45I add that, in any event, the negligence claims would not satisfy the remaining criteria in ss. 5(1)(b) and (d) largely for the same reasons set out below in relation to the Charter claims.

(ii) Charter claims

46The motion judge accepted that the Charter claims could satisfy the cause of action criterion:

The only possible causes of action pleaded that can survive the obstacles identified above are the claims for breach of Charter rights….

Needless to say, there are no Crown immunities for breach of the Charter. It is undeniable that an "[u]nreasonably prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of the Charter"…. It is equally the case that such unreasonable denial of bail impugns the presumption of innocence in s. 11(d) of the Charter….

Furthermore, the Charter claims are framed in a way that does not raise a justiciability problem in the same way as the negligence and fiduciary duty claims do. They are more specifically aimed at the role of the Crown in the bail process itself and not at the "government in its generic sense — meaning he whole of the apparatus of state", which would beyond the scope of a valid Charter claim….

47The motion judge nonetheless refused to certify the Charter claims. He did so because the Charter claims raised no common issues and so a class proceeding is not the preferable procedure. He also doubted that there is an identifiable class.

48I agree with the motion judge that the Charter claims should not be certified.

49I do not need to address the viability of the cause of action with respect to the Charter claims. Even if the Charter claims were to satisfy s. 5(1)(a), they do not meet the identifiable class, common issue or preferability criteria. I turn to those now.

(b) Section 5(1)(b): Identifiable class

50A class definition must be defined by reference to objective criteria, without reference to the merits of the action: Hollick v. Toronto, 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 17.

51As noted above, the appellant’s putative class includes all persons within the class period who did not get a bail hearing within 24 hours “as a result of” certain criteria:

The Plaintiff brings this action pursuant to the CPA on her own behalf and on behalf of all other persons who were arrested and detained for a period of more than 24 hours prior to any meaningful Bail Hearing being available as a result of:

(a) the matter not being reached;

(b) transportation, or lack thereof, from detention to the bail hearing;

(c) interpretative services not present at the bail hearing;

(d) the accused not having the opportunity to speak with counsel prior to arriving at the bail hearing; or

(e) the Crown not being willing to proceed with a hearing.

for the time period of January 1, 2000 to the present, but excluding individuals charged with an offence mentioned in s.469 of the Criminal Code (the "Class").

52In addition to appearing in the statement of claim, the “as a result of” qualification appears throughout the proceedings: in the motion record, in argument before the motion judge, in the proposed common issues and the factum, and in argument before this court.

53A causation criterion is inherently merit-based. In Ragoonanan Estate v. Imperial Tobacco (2005), , 78 O.R. (3d) 98 (S.C.), aff’d , 236 O.A.C. 199 (Div. Ct.), the court did not certify a class proceeding because there was a causation element in the class identification. The proposed action was on behalf of persons who claimed that a certain brand of cigarette ignited furniture or a mattress. The motion judge held, at para. 37:

[The proposed class definition] is merits-based because its application depends on proof of damage caused by fire and also on the resolution of a number of other issues of causation which may be seriously in dispute. These would include the question whether the fire started on upholstered furniture, or a mattress; whether the ignition source of the fire was a cigarette; and, if so, whether it was manufactured by the defendant…. For these reasons, I find that the membership of such a class would not be sufficiently "identifiable" within the meaning of s. 5(1)(b).

54Here, the difficulty is that a factual determination is required as to the cause of the delay beyond 24 hours. In an attempt to circumvent this problem, the appellant submitted that the right to a hearing is actually “within a reasonable time”. This qualification is also problematic for it results in a class definition that would be based on individual assessments and would be incapable of objective determination.

55I conclude that the identifiable class criterion is not met.

(c) Section 5(1)(c): Common issues

56Common issue 5 relates to the Charter claims:

By its operation, management or administration of bail hearings in Ontario, did the Defendant breach the class members' Charter rights under ss. 7, 9, 11(d), 11(e) and/or 12?

i) If the answer to common issue (5) is "yes", can the breach be saved by s. 1 of the Charter?

ii) If the answer to common issue (5) is "yes", and the answer to common issue (5)(i) is "no", are the class members entitled to damages pursuant to s. 24(1) of the Charter?

57The appellant submits that the question to be asked is whether there is “some basis in fact” supporting a conclusion that the proposed common issues are common to all class members in the sense that their resolution will avoid duplication of fact-finding or legal analysis: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 102; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 39.

58Here, the motion judge quoted the following passage from a leading text on class actions in describing the cause of action requirement:

The [common issue] requirement is set out succinctly in Warren Winkler, Paul Perell, Jasminka Kalajdzic, and Alison Warner, The Law of Class Actions in Canada (Toronto: Canada Law Book, 2014), 112-13:

[I]f an issue can be resolved only by asking it of each class member, it is not a common issue… An issue is not ‘common’ simply because the same question arises in connection with the claim of each class member, if that issue can only be resolved by inquiry into the circumstances of each individual’s claim... The fact of a common cause of action asserted by all class members does not in itself give rise to a common issue since the actual determination of liability for each class member may require individualized assessments.

59The motion judge noted that “[a]t the very least, the claim must share not only a common court infrastructure but a common experience of having a specific Charter right violated.” He noted that all of the Charter issues that were said to be engaged “share[d] a common thread of reasonableness” and that “[r]easonableness is a difficult issue to assess as a common issue.” He concluded that “[t]he proposed common issues pertaining to the Charter claims require individualized and particularized assessments of each case.” I agree with that conclusion.

60Here, the appellant asks whether “[b]y its operation, management or administration of bail hearings in Ontario… the Defendant breach[ed] the class members' Charter rights under ss. 7, 9, 11(d), 11(e) and/or 12”.

61The appellant submits that all class members share an interest in whether the Crown’s conduct offended the Charter, even if there is a significant level of difference among the class members, even if the common questions require nuanced answers based on the varied circumstances of class members, and even when there may be individual issues remaining following the trial of common issues. She submits that the reasonableness inquiry does not preclude a common determination. She also submits, pointing to several cases, that courts have repeatedly certified claims based on alleged Charter breaches.

62For instance, in Johnson v. Ontario, 2016 ONSC 5314, 364 C.R.R. (2d) 17, the plaintiffs were former inmates of the Elgin-Middlesex Detention Centre. They contended that overcrowding coupled with a lack of supervision resulted in inhumane conditions. Their statement of claim included a number of causes of action, including breach of ss. 7 and 12 of the Charter. The motion judge found that the questions relating to the alleged breaches of ss. 7 and 12 raised common issues. The focus was on the general operational methods adopted by the Detention Centre.

63In Lauzon v. Canada (Attorney General), 2014 ONSC 2811, 58 C.P.C. (7th) 201, aff’d 2015 ONSC 2620, 384 D.L.R. (4th) 532 (Div. Ct.), the plaintiff sought to certify a class action on behalf of a class of inmates who wore t-shirts that were designed to commemorate Prisoner Justice Day. The Crown subsequently prohibited possession of the t-shirts. The plaintiffs claimed the Crown’s conduct breached their right to freedom of expression under s. 2(b) of the Charter. The motion judge concluded that the proposed common issues on breach of the Charter satisfied the common issues requirement. The activity in question was the same (wearing the t-shirts at Joyceville), the prohibition was imposed on all inmates, and if there was a breach, the s. 1 analysis would be common to all inmates.

64Finally, the appellant relies on Good v. Toronto Police Services Board, 2014 ONSC 4583, 121 O.R. (3d) 413 (Div. Ct.), aff'd 2016 ONCA 250, 130 O.R. (3d) 241, leave to appeal refused, [2016] S.C.C.A. No. 255. There, the plaintiff alleged a breach of the class members’ rights not to be arbitrarily detained during the G20 summit in Toronto. There was some basis in fact of commonality: it was alleged a common order was made ordering the detention of the class members without regard for the individual characteristics or conduct of each class member.

65In my view, these cases share a distinguishing feature. The Charter questions arise from a single course of conduct: Johnson considered the common conditions inmates experienced in the same jail; Lauzon involved the decision to prohibit the t-shirts; Good involved an alleged command order to “box in” certain groups during a protest. Here, there is no single course of conduct giving rise to the alleged breaches.

66I consider the British Columbia Court of Appeal’s analysis in Thorburn v. British Columbia, 2013 BCCA 480, 52 B.C.L.R. (5th) 130, to be applicable. In that case, the representative plaintiff had been arrested at a protest and strip-searched in accordance with a specific policy. The plaintiff brought a class proceeding on behalf of those persons who were not remanded into pre-trial custody at the jail but who were subjected to routine strip searches. The motion judge dismissed the certification motion, and the Court of Appeal upheld the decision. At paras. 41-42, the court stated:

An unreasonable policy alone could not provide the foundation for determining each class member’s cause of action of an unreasonable search; only an individual assessment of the relevant circumstances unique to each class member would allow a judge to determine if a cause of action had been established.

[A] finding of a s. 8 Charter violation as a result of an unreasonable search of one class member will not found a similar finding for another class member as a finding of an unreasonable search is dependent on a multitude of variable circumstances unique to each class member.

67Here, the Charter claims are similarly not capable of common determination. For example:

Sections 7 and 9: Any detention would have resulted from adjournment and remand orders, which are not being challenged. If they were challenged, the case would depend on the reasons why each was made.

Section 11(e): Whether bail was “reasonable”, including whether the terms of release were reasonable, are individual questions.

Section 12: The pleading does not contain factual allegations that would support this claim. Detention pursuant to a court order, without more, does not constitute cruel and unusual punishment. To the extent that any putative class member has a claim for cruel and unusual punishment, the facts that would support it would be necessarily individual: see Ogiamien v. Ontario (Ministry of Community Safety and Correctional Services), 2017 ONCA 667, 355 C.C.C. (3d) 41, at paras. 67-68; Toure v. Canada (Minister of Public Safety and Emergency Preparedness), 2018 ONCA 681, 419 C.R.R. (2d) 114, at paras. 75-76.

68Accordingly, I conclude that the common issue requirement is not met.

(d) Section 5(1)(d): Preferable procedure

69Despite the allegation of a systemic wrong, a class proceeding is not the preferable procedure. This court in Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501, 115 O.R. (3d) 321, at para. 71, leave to appeal refused, [2013] S.C.C.A. No. 373, said:

Even if the class definition and common issue requirements were satisfied, it is my view that a class action is not the preferable procedure. A general finding of "systemic wrong" would not avoid the need for protracted individualized proceedings into the vulnerability and circumstances of each class member. A more efficient and expeditious way to adjudicate these claims would be to proceed directly by way of individual actions as it is inevitable that a class proceeding will break down into individual proceedings in any event.

70Similarly, in light of the foregoing conclusions, a class proceeding is not the preferable procedure. I agree with the motion judge’s reasons.

(e) Crown Liability and Proceedings Act

71The Divisional Court remitted the matter to the motion judge for a decision on the impact of the CLPA. He concluded that his decision was unaffected by the enactment of the new statute.

72After oral submissions in this court, the parties requested and were given the opportunity to make brief further submissions with respect to the release of Leroux v. Ontario, 2021 ONSC 2269 (Div. Ct.) and Francis v. Ontario, 2021 ONCA 197. Neither case impacts my conclusions on the substantive issues set out above. Given my conclusions, I do not need to address the CLPA or Leroux and Francis.

V. Appellant’s Personal Claims in Negligence

73Although the appellant’s factum states that the motion judge struck her personal claim in negligence, the order of May 23, 2019 only dismisses the certification of the class proceeding. The order of June 26, 2020 determines that the CLPA is a bar to the certification of her negligence claims. An appeal is from the order and not the reasons: Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2016 ONCA 404, 131 O.R. (3d) 455, at para. 33. Consequently, I conclude that the issue is not properly before us and make no determination with respect to her personal claims.

VI. Conclusion

74The proposed class action does not meet the certification requirements of the CPA.

75I would dismiss the appeal. If the parties do not agree on costs, I would request written submissions limited to five pages within 15 days of the release of this decision.