Rishma Bhimji

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.

This decision addresses the issue of costs following the release of the Canada RFD Decision in the Fontaine litigation.

The court considered whether the unsuccessful Respondents should be awarded costs, despite not prevailing on the motion.

The court reviewed the parties’ written submissions and the relevant legal principles, ultimately concluding that there were no exceptional circumstances justifying a costs award to the unsuccessful party.

The court declined to order costs of the hearing.

The requestors brought a motion to summon the former Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat to provide evidence at an upcoming hearing of a Request for Directions (RFD) brought by Canada.

Canada's RFD sought to strike the requestors' own RFD regarding compliance with ancillary orders.

The court dismissed the motion, finding that the former Chief Adjudicator's evidence regarding his conduct or failure to bring an RFD was not relevant to the narrow interpretation and procedural issues raised in Canada's RFD.

The requestors brought a motion seeking answers to 142 questions refused by Canada during an out-of-court cross-examination of a government affiant.

The cross-examination arose in the context of Canada's request for directions to strike the requestors' motion regarding compliance with the Indian Residential Schools Settlement Agreement.

The court largely upheld Canada's refusals on the bases of relevance, proportionality, privilege, and speculation, but ordered Canada to answer six specific questions of fact.

The plaintiffs brought a motion to certify a class action against Canada on behalf of immigration detainees who were incarcerated in provincial prisons.

The plaintiffs alleged that the practice of detaining immigration detainees in provincial prisons, where they are subjected to penal conditions such as co-mingling with criminal inmates, strip searches, and the use of restraints, violates sections 7, 9, 12, and 15 of the Charter and constitutes systemic negligence.

The court dismissed all of Canada's objections, finding that the pleadings disclosed reasonable causes of action, the class was identifiable, the common issues could be determined in common, a class action was the preferable procedure, and the representative plaintiffs were adequate.

The motion for certification was granted.

The defendant, the Attorney General of Canada, brought a motion to defer filing its statement of defence until after the certification motion in a proposed class proceeding regarding immigration detention.

The court dismissed the motion, applying the presumption that a defendant must file a statement of defence before certification unless special circumstances justify a deferral.

The court found that the legal issues were well-defined and the defendant's concerns about the complexity and resources required to prepare the defence conflated pleading preparation with discovery or trial preparation.