Arenson v. City of Toronto, 2013 ONSC 5837

ORAL REASONS FOR JUDGMENT

GRACE J. (orally)

1This is an appeal from the decision of Perell J. dismissing the plaintiff’s certification motion on the basis that the plaintiff had not met the class definition and common issues requirements under the Class Proceedings Act. The appellant appeared to concede there, and clearly concedes before us, that the class definition proposed on the motion was defective. The appellant also concedes that an adjournment was not requested for the purpose of amending either the class definition or common issues.

2The appellant served but did not file a fresh motion, four days after Perell J. released his decision, requesting consideration of an amended class definition in order to address defects identified by the motion judge. Rather than proceeding with that motion, the appellant proceeded with this appeal asking this court to certify the class proceeding on the basis of a new class definition and restated common issues. As a preliminary issue, we asked the appellant to address our jurisdiction to make an order based on a record which has essentially been rethought and reconstituted.

3In Perez (Litigation Guardian of) v. Salvation Army (1998), 1998 7197 (ON CA), 42 O.R. (3d) 229 at para. 11, the Court of Appeal wrote:

In the normal course, appeals are not the proper forum in which to raise brand new issues which significantly expand or alter the landscape of the litigation. On occasion, such issues can be raised on appeal where the party seeking to raise the new issue demonstrates that the interests of justice require an exception to the normal and accepted course of litigation.

4Mr. Arenson submitted that this case is one which requires an exception based on the interests of justice. We disagree. The changes proposed are fundamental ones addressing essential elements of the test for certification. They are not analogous to those accepted in Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.) at paras. 28-29.

5In Brown v. Canada (Attorney General) 2013 ONCA 18, Rosenberg J.A. wrote on behalf of the Court at para. 45:

There is no question that class proceedings evolve as they work their way through the certification and case management process and that the case management judge plays an important role in guiding the evolution of the proceeding. But, certifying a class action in the absence of a statement of claim that discloses viable causes of action is not case management. Even the power to amend other aspects of the claim, such as the proposed common issues, should be exercised with caution and restraint.

6While we are not dealing with a cause of action issue in this appeal, we are of the view these statements are applicable here. In this case there is an absence of a defined class, a fundamental element for certification. It is not our task to be a court of first instance in respect of a certification motion. We express no opinion as to whether a motions judge has jurisdiction to hear a second motion for certification based on a reconstituted class definition and/or reframed common issues. Given our disposition of this appeal, any such motion in this case should be returnable at first instance before Perell J.

7For the reasons given, the appeal from the July 5, 2012 decision of Perell J. is dismissed.

ASTON J.

8The test for overturning a judge’s discretionary decision on costs is whether the judge made an error in principle or whether the award is plainly wrong. On the record before us, that threshold has not been met. I have endorsed the Appeal Book on behalf of the panel, “The appeals are both dismissed, for oral reasons given and recorded. Plaintiff/appellant is to pay costs of the appeal fixed at $15,000 all inclusive.”