CITATION: Lauzon et. al. v. The Attorney General of Canada, 2015 ONSC 2620
DIVISIONAL COURT FILE NO.: DC-14-298
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., LEDERER, FITZPATRICK JJ
BETWEEN:
JASON LAUZON and JOHN CHAIF
Plaintiffs/Appellants
– and –
THE ATTORNEY GENERAL OF CANADA
Defendant/Respondent
Shane Martinez and Davin Charney, for the Plaintiffs/Appellants
Cynthia Koller and Victoria Yankou, for the Defendant/Respondent
HEARD: March 12, 2015
MARROCCO A.C.J.S.C.:
[1] Federal inmates recognize August 10 as a day to remember inmates who died of unnatural causes while in custody.
[2] Inmates at Joyceville Institution designed, purchased and on, August 10, 2010, wore t-shirts featuring an inverted Maple leaf.
[3] There is a factual issue concerning the institution’s approval of the design. The institution maintains the flag was upright in the approved design and that the representative plaintiff Lauzon surreptitiously communicated with the shirt printer to invert the flag. Resolution of this issue was not important at the certification hearing.
[4] Two weeks later the Minister of Public Safety Canada directed the Correctional Service of Canada to ensure that these t-shirts were never worn again at Joyceville. The Minister stated that the t-shirts were “offensive”, “unacceptable” and “dishonourable.” Shortly after the Minister made this public statement, notices were posted at the Joyceville Institution telling inmates to surrender the t-shirts.
[5] On August 26, 2010 correctional service officers at Joyceville searched the Institution and seized these t-shirts. Inmates who refused to surrender the t-shirts were disciplined.
[6] At no time did any inmates file a grievance under the Corrections and Conditional Release Act and Commissioner’s Direction 081. Any grievance is, subject to extension, required to be filed within 30 days of the action or decision aggrieved.
[7] Jason Lauzon and John Chaif are inmates at Joyceville. They sought to certify a class action on behalf of all of the Joyceville inmates who ordered or possessed the prohibited t-shirts. In this class action, the plaintiffs on their own behalf and on behalf of the members of the class sought:
• A declaration that the defendant’s prohibition against wearing the t-shirts offended section 2(b) of the Charter of Rights and Freedoms;
• A declaration that the defendant’s prohibition and seizure of the t-shirts amounted to a misfeasance in public office by the Crown employees who made the seizure;
• General damages in the amount of $250,000 for trespass to chattels;
• Damages pursuant to section 24 of the Charter in the amount of $500,000 for breaches of the class members’ section 2(b) rights;
• Punitive and exemplary damages in the amount of $500,000 for the same torts and Charter breaches;
• Prejudgment and post judgment interest; and
• Costs.
[8] Two motions were heard by the motion judge:
• The plaintiffs moved for certification pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6; and
• The defendant moved to strike the misfeasance claim.
[9] In her decision dated May 20, 2014 the motion judge ordered the misfeasance claim struck without leave to amend. The plaintiffs ultimately did not pursue an appeal of this order.
[10] In the same decision, Her Honour refused to the plaintiffs’ motion for certification. Her Honour decided that a class action was not the preferable procedure for resolving the common issues raised in the claim. Specifically, Her Honour concluded that the grievance process established by the Corrections and Conditional Release Act, S.C. 1992, c. 20 had the potential to effectively redress the substance of the plaintiffs’ claims despite the unavailability of damages. The motion judge decided that the grievance procedure more readily and appropriately afforded access to justice than the class action process and was “therefore” the preferable procedure. This conclusion meant that section 5(1)(d) of the Class Proceedings Act was not satisfied, with the result that the plaintiffs’ claim could not be certified as a class proceeding.
[11] Pursuant to section 30 of the Class Proceedings Act, the plaintiffs appealed to the Divisional Court.
The standard of review of a decision refusing certification
[12] The Supreme Court of Canada has considered the standard of review of certification decisions. In AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 959, the Supreme Court considered a situation in which a group of mutual fund managers were sued by a group of investors who sought to certify their proceeding as a class proceeding. The fund managers had been the subject of an investigation by the Ontario Securities Commission and had entered into agreements with the Ontario Securities Commission which resulted in them paying investors millions of dollars. These Ontario Securities Commission settlements did not preclude civil proceedings.
[13] The focus of Fischer was the certification requirement that a class proceeding be the preferable procedure for resolving the common issues of fact and law. At the end of that decision at para. 65, the Supreme Court stated: “…a decision by a certification judge is entitled to substantial deference… However, I conclude that deference does not protect the decision against review for errors in principle which are directly relevant to the conclusion reached…”
[14] Accordingly, it is appropriate to examine the motion judge’s decision to see if it contains errors in principle directly relevant to the decision concerning the preferable procedure for resolving the common issues, failing which the decision is entitled to substantial deference.
The motion judge had a correct appreciation of the burden of proof
[15] Her Honour correctly identified at para. 9 that the burden of proof was on the plaintiffs:
“In order to succeed on the motion, the plaintiffs must show ‘some basis in fact for each of the certification requirements’, other than the requirement that the claim disclose a cause of action.”
This is consistent with Fischer, which at para. 48 held that the representative plaintiffs must show that a class proceeding would be a fair, efficient and manageable method of advancing the claim and that it would be preferable to any other reasonably available means.
[16] In the context of a comparative analysis of the two procedures with which we are concerned, the Attorney General of Canada bears the burden of establishing that a grievance procedure existed and the plaintiffs bear the burden of showing some basis in fact for concluding that a class action would be preferable to a grievance. See Fischer at paras. 48-49. However, it was not necessary to prove the grievance procedure as a fact because it is set out in Corrections and Conditional Release Regulations, SOR/92-620 promulgated pursuant to section 96(u) of the Corrections and Conditional Release Act. In addition, the Commissioners Directive 081 entitled “Offender Complaints and Grievances” was received in evidence with the result that the principles and mechanics of the grievance process were before the motion judge.
[17] Accordingly the motion judge’s decision contains a correct appreciation of the burden of proof.
The decision that the grievance procedure was preferable
[18] The Supreme Court in Fischer provided an analytical framework for a preferability inquiry. Accordingly the question becomes whether the motion judge conducted her inquiry in a manner that was consistent with this analytical framework and thereby avoided an error in principle.
[19] The motion judge referred to the Fischer decision. Her Honour described the analytical framework set out in that decision.
[20] In Fischer the Supreme Court restated the purposes of class proceedings: judicial economy, behaviour modification and access to justice. It was not disputed that the Ontario Securities Commission’s regulatory proceedings had achieved behaviour modification. If the Ontario Securities Commission proceedings achieved access to justice, then those proceedings would have also served the goal of judicial economy. Accordingly, the appeal in Fischer turned on a comparison of how well the Ontario Securities Commission proceedings and the class action proceeding achieved access to justice for the investors victimized by the mutual fund managers.
[21] In the Fischer decision the Supreme Court said that a class action will better serve the goal of access to justice if, after Ontario Securities Commission regulatory procedures have been considered, access to justice concerns remain which a class action could redress. Fischer proposed five questions which assist when making this determination.
The motion judge answered the five “access to justice” questions proposed in Fischer
[22] The appellants complain that the motion judge did not answer all five questions.
[23] It is clear that the motion judge was aware of those questions because Her Honour set them out in her decision.
[24] I will now consider the motion judge’s decision in relation to each question.
Q.1: What are the barriers to access to justice?
[25] The Supreme Court stated that when considering this question it must be recognized that access to justice has both a procedural and a substantive aspect.
[26] The Court noted that the most common barrier to access to justice is an economic one which arises when an individual cannot bring forward a claim due to the high cost of the litigation in comparison to the modest value of the claim.
[27] It pointed out that barriers to access to justice may also arise from other factors such as:
• ignorance of the availability of substantial legal rights,
• ignorance of the fact that significant injuries have occurred,
• limited language skills,
• elderly age of the complainants,
• frail emotional or physical state of the claimants,
• fear of reprisals,
• alienation from the legal system, and
• no other procedure available to afford meaningful redress.
[28] There was no suggestion that the plaintiffs faced the typical economic barrier of the type described in Fischer. Her Honour found that the substance of the claim for which redress was sought was that the Crown breached the inmates’ freedom of expression when it prohibited the t-shirts.
[29] With respect to the non-economic barriers described in Fischer, it is part of the factual context of this matter that the proposed representative plaintiffs were aware of the grievance procedure and elected not to use it.
[30] It is clear that the plaintiffs knew what had taken place with respect to the t-shirts.
[31] There was no suggestion that the plaintiffs feared reprisals. The evidence was that at least both representative plaintiffs had successfully resorted to the grievance process in the past. This also does not suggest alienation from the legal system.
[32] In this context, determining whether there was a barrier to access to justice required consideration of whether another procedure was available to afford meaningful redress. The motion judge identified this issue. The substance of Her Honour’s reasons is an explanation of her conclusion that the plaintiffs had access to a grievance process which in substance would have provided meaningful redress. The motion judge specifically addressed and rejected every reason the plaintiffs put forward to demonstrate that the grievance procedure would not afford meaningful redress.
[33] The motion judge addressed the substantial aspect of access to justice. Her Honour considered and resolved the fact that damages were available in a class action proceeding and not available through the grievance procedure. Her Honour considered and resolved whether the t-shirts could be recovered through the grievance procedure. Her Honour considered and resolved whether a declaration concerning the plaintiff’s freedom of expression under the Charter could be obtained in the context of a grievance or if such a declaration could only be obtained in a class action.
[34] In all these ways, the motion judge answered the first question proposed by the Supreme Court.
Q.2: What is the potential of the class action proceeding to address this barrier?
[35] The motion judge was well aware that a class proceeding could provide meaningful redress. There was no need for an elaborate description of why this was so.
[36] The Supreme Court of Canada said that this question was not to be considered in isolation but rather was a comparative analysis (Fischer, at para. 28). The motion judge engaged in a comparative analysis and at the same time specifically addressed and rejected the reasons why the plaintiffs maintained that the class proceeding was preferable. Specifically, the plaintiffs suggested that the grievance process did not permit them to complain against the Minister. They submitted that the grievance process was no longer available to inmates who were now out of custody. They argued that it was uncertain whether the normal 30 day timeframe for filing a grievance would be extended. The motion judge addressed and rejected each one of these claims.
[37] The motion judge therefore answered the second Fischer question.
Q.3: What are the alternatives to class proceedings?
[38] The motion judge’s reasons dealt with the grievance procedure as an alternative to a class proceeding.
[39] Her Honour answered this question.
Q.4: To what extent do the alternatives address the relevant barriers?
[40] Her Honour concluded that the grievance procedure offered meaningful redress because it was available to the plaintiffs, it could lead to a return of the t-shirts and it could result in a declaration defining their right to freedom of expression in the institution.
[41] Her Honour answered this question.
Q.5: How do the two proceedings compare?
[42] It cannot seriously be contended that the motion judge did not make this comparison.
[43] Her Honour understood the oral and documentary discovery available in a class proceeding as well as the Superior Court’s jurisdiction to make a declaration and award damages.
[44] The grievance procedure was before the motion judge.
[45] The regulations and the Commissioner’s Directive were capable of establishing that the grievance procedure, while informal in terms of commencement, is capable of escalating into a decision from the Commissioner which presumably has significance not only for the institutional head at Joyceville but also for the heads of all institutions supervised by the Commissioner.
The grievance procedure
[46] Where an inmate is dissatisfied with an action by a staff member, the inmate may submit a written complaint. Every effort is to be made to resolve the matter informally.
[47] The complaint with which we are concerned is not frivolous or vexatious or made in bad faith and as a result a supervisor would be required to make a decision concerning the complaint if it could not be otherwise resolved.
[48] If the inmate is dissatisfied with the supervisor’s decision, the inmate may submit a grievance.
[49] If the inmate is dissatisfied with the decision respecting the grievance, the inmate can require review of the grievance by an outside Review Board. The outside Review Board can only make a recommendation concerning the grievance.
[50] If the inmate is dissatisfied with the institution’s response to that recommendation, then the inmate can appeal the grievance decision to the Commissioner.
[51] The regulations provide that the grievance procedure and litigation are not mutually exclusive.
[52] There is no basis for the appellants’ suggestion that the motions judge was unaware of the specifics of the grievance procedure. Her Honour specifically referred to section 90 of the Corrections and Conditional Release Act, which mandates the creation of a procedure for “fairly and expeditiously resolving offenders’ grievances on matters within the jurisdiction of the Commissioner…” In addition, Her Honour specifically referred to the Corrections and Conditional Release Regulations and the Commissioner’s Directive 081 which set out the principles and mechanics of the grievance process.
The results of a grievance
[53] Her Honour recognized that the grievance procedure could result in the return of the t-shirts.
[54] Her Honour recognized that a decision upholding the grievance would constitute a statement by the Commissioner concerning the appropriateness of the actions taken concerning the t-shirts and would presumably result in a modification of the offending behaviour not only in Joyceville but throughout the institutions supervised by the Commissioner.
[55] Her Honour answered the fifth and last Fischer question.
The plaintiffs’ specific submissions concerning preferability were considered and rejected
[56] Her Honour specifically considered and rejected each of the following submissions made by the representative plaintiffs in support of their submission that the class action procedure was preferable for resolving the common issues of fact and law raised by their claim:
a) Only the class action proceeding would permit the plaintiffs to pursue the Minister
[57] Her Honour rejected this argument because she had struck the claim for misfeasance in public office and because actions with respect to clothing are matters within the jurisdiction of the Commissioner and matters within the jurisdiction of the Commissioner can be the subject of a grievance regardless of who instigated the seizure. This does not reflect an error in principle. The claim for misfeasance in public office was not pursued in this court. The plaintiffs’ claim was against the Crown not the Minister. Actions with respect to prohibited clothing and contraband generally are within the jurisdiction of the Commissioner.
b) There were better procedural rights in a civil action
[58] Her Honour rejected this argument because it was her view that the Fischer decision required a fair process to resolve the plaintiffs’ claim rather than specific procedural rights. This does not reflect an error in principle. To the contrary, the Supreme Court of Canada at parag. 24 of Fischer stated: “But what is access to justice in this context? It has two dimensions which are interconnected. One focuses on process and is concerned with whether the claimants have access to a fair process to resolve their claims….” (Emphasis added)
c) The plaintiffs were claiming damages.
[59] Her Honour evaluated this argument and rejected it. Her Honour concluded that the substance of the plaintiffs’ claim was that the Crown breached their Charter right to freedom of expression by prohibiting the t-shirts. It was Her Honour’s view that the grievance process had the potential to provide a remedy for this claim. Through the grievance process it was Her Honour’s view that the inmates could have sought a direction that their shirts be returned to them, a revocation of the prohibition on wearing the shirts, and an opportunity to wear the shirts again.
[60] Her Honour commented that judicial review of an unsatisfactory grievance process result was also available. While I do not wish to overstate the nature of the judicial review available, it is undoubtedly correct for Her Honour to conclude that judicial review in the Federal Court would protect the fairness of the grievance process. In addition, judicial review in the Federal Court had the potential to lead to a declaration concerning infringement of the plaintiffs’ right to freedom of expression.
[61] Her Honour’s comments in this regard do not reflect an error in principle. There was no suggestion that a grievance process could not lead to the results described by Her Honour nor was there any dispute about the availability of judicial review in the Federal Court.
[62] Finally, the motion judge made the practical observation that a class action cannot automatically become a preferred procedure simply because the plaintiff includes a claim for discretionary Charter damages. This does not reflect an error in principle. Her Honour’s comment concerning the desirability of avoiding a mechanistic approach to a preferability inquiry is entirely consistent with the Supreme Court of Canada’s comment in Fischer at para.. 21 to the effect that when comparing an alternative with the proposed class proceeding, it is important to adopt “a practical cost benefit approach to this procedural issue and to consider the impact of a class proceeding on class members, the defendants, and the court.”
d) The grievance process was no longer available.
[63] Her Honour rejected this argument because the grievance process was available in August 2010 when the t-shirts were prohibited. Her Honour’s conclusion does not reflect an error in principle. It was Her Honour’s view and it is a view with which we agree that, where a plaintiff deliberately chooses to forego access to justice through an alternative procedure which has ceased to be available, he or she cannot argue that the class action by default has become the preferable procedure.
e) The grievance procedure measured against the objectives of class proceedings
[64] Her Honour considered the preferability issue by having regard to the three objectives of class proceedings. This does not reflect an error in principle. Rather, it is consistent with the approach described in para. 22 of Fischer.
[65] Her Honour concluded that access to justice was more readily and appropriately sought through the grievance process, that judicial economy would be promoted by having this dispute addressed through that process and that the Crown’s behaviour would have been modified had the inmates successfully grieved. These conclusions do not reflect an error in principle. It was not necessary for Her Honour to specifically state that the grievance procedure was more expeditious than a class proceeding. Nor was it necessary for Her Honour to elaborate on the normative effect of a grievance procedure decision by the Commissioner reaffirming the rights of the plaintiffs to wear the disputed t-shirts. Her Honour did observe that grievances could have been filed individually or in groups. While all persons wishing to file a grievance must sign the complaint that starts the process, there was evidence before the motion judge that the inmates had discussions and meetings concerning the seizure of the t-shirts and the complaints could have been signed at that time. Group grievances are accepted. See section 45 of Commissioner’s Directive 081.
Conclusion
[66] In short, the decision of the motion judge does not reflect any error in principle. Accordingly, her decision should be accorded substantial deference by this Court. Quite apart from the question of deference, we agree with the decision and would have dismissed this appeal even if the overall standard of review was correctness. This appeal is dismissed with costs payable to the Attorney General of Canada.
Costs
[67] If the parties are unable to agree on costs, the Attorney General of Canada shall deliver its submissions within five days of the release of this decision and the plaintiffs shall deliver their responding submissions within three days. Submissions shall not exceed three pages exclusive of the bill of costs. If the plaintiffs cannot get instructions from the Law Foundation of Ontario, which we were advised is funding this litigation, then we are prepared to consider some modest amendment to this timeline.
MARROCCO A.C.J.S.C.
LEDERER J.
FITZPATRICK J.
Released:
CITATION: Lauzon et. al. v. The Attorney General of Canada, 2015 ONSC 2620
DIVISIONAL COURT FILE NO.: DC-14-298
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JASON LAUZON and JOHN CHAIF
Plaintiffs/Appellants
– and –
THE ATTORNEY GENERAL OF CANADA
Defendant/Respondent
REASONS FOR JUDGMENT
Released: 20150504