CITATION: Johnson v. Ontario, 2016 ONSC 5314

COURT FILE NO.: 2291/13/CP

DATE: 20160823

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GLENN JOHNSON and MICHAEL SMITH

Plaintiffs

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

Michael Peerless, Kevin Egan and Matt Baer, for the Plaintiffs

William J. Manuel, Robert Ratcliffe, Rita Bambers and Dan Huffaker, for the Defendant

HEARD: January 27, 28 and 29, 2016

Grace J.

A. Introduction

[1] The plaintiffs are former inmates of the Elgin-Middlesex Detention Centre (“EMDC”), a correctional institution located in London, Ontario.

[2] Her Majesty the Queen in Right of Ontario (“Ontario”) owns and operates EMDC under the direction of the Ministry of Community Safety & Correctional Services (“Ministry”) and pursuant to the authority conferred by the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (the “MCSA”).

[3] Mr. Johnson alleges he endured threats, assaults, inadequate medical attention and overcrowding while housed at EMDC during the period from May 2 until December 30, 2012. Mr. Smith says he was threatened and assaulted too while incarcerated within EMDC from July 9 until July 13, 2012. Their experiences, they say, were shared by a host of others. Physical and psychological harm is said to have been suffered.

[4] Systemic negligence, assault and battery, breaches of fiduciary duty and ss. 7 and 12 of the Canadian Charter of Rights and Freedoms (“Charter”)[^1] are the causes of action raised in the statement of claim.

[5] Declaratory relief, compensatory and punitive damages and other incidental remedies are sought on behalf of the named plaintiffs and all other inmates of EMDC during the relevant period.[^2]

[6] At paras. 86 and 89 of their factum, the plaintiffs address the exceptional circumstances they seek to address in this action:

The Plaintiffs are not advancing this claim on the basis that incarceration should involve no hardship…The Plaintiffs accept that prisons are, by their very nature, stressful, unpleasant and difficult places to live. However, there are basic, internationally accepted, minimum standards for humane treatment of prisoners and the Plaintiffs allege that, during the class period, the Defendant negligently failed to ensure that those standards were maintained.

It is the Plaintiffs’ position that the overcrowding at EMDC, coupled with the Crown’s lack of supervision resulted in an institution accurately described as brutal, unpredictable and inhumane.

[7] On this motion the plaintiffs seek an order certifying this action as a class proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”).

[8] Ontario opposes certification and in doing so, seeks to strike some of the evidence on which the plaintiffs rely. It also seeks to strike various portions of the statement of claim, without leave to amend. I will address Ontario’s motion in the course of my reasons concerning the plaintiffs’ request for certification motion.

B. Background

[9] For now, some brief introductory comments will suffice. EMDC opened in 1977. It has been described as a maximum security remand facility servicing Elgin, Middlesex, Oxford and since December, 2011, Huron counties.

[10] Men and women are admitted to EMDC under a host of warrants and detention orders. The length of stay varies from hours to years.

[11] EMDC has ten detention units organized under seven main groupings: (a) protective custody, (b) general population, (c) intermittent inmates, (d) women, (e) workers, (f) special needs and (g) segregation.

[12] While the facility does not include an infirmary, it does contain a Health Care Unit staffed by a health care manager and nurses. Following admission, inmates are assessed by a nurse and examined by a physician retained on a fee-for-service basis pursuant to the MCSA.

[13] On October 3, 2013, the plaintiffs’ solicitors notified Ontario of their intention to start a proceeding as required by the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1) (“PACA”). The statement of claim in this action was issued December 9, 2013.

[14] Former inmates of EMDC have commenced dozens of actions against Ontario. Most were commenced before but some post-date this action. The plaintiffs in the individual actions make similar allegations, assert similar causes of action and seek similar remedies.

[15] Other former prisoners served notices pursuant to PACA but had not commenced an action at the time these motions were argued.

C. The Statutory Test for Certification

[16] The proceeding must be certified if the plaintiffs satisfy the requirements s. 5(1) of the CPA imposes. The subsection requires:

a) First, that the statement of claim disclose a cause of action: s. 5(1)(a);

b) Second, that there is an identifiable class of two or more persons that would be represented by the plaintiffs: s. 5(1)(b);

c) Third, that the claims of the class members raise common issues: s. 5(1)(c);

d) Fourth, that a class proceeding be a preferable procedure for the resolution of those common issues: s. 5(1)(d); and

e) Fifth, that the plaintiffs:

i. would fairly and adequately represent the interests of the class;

ii. have produced a plan 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. do not have an interest in conflict with the interests of other class members insofar as the common issues are concerned: s. 5(1)(e).

D. General Principles

[17] I start with some general principles.

[18] It has long been established that the court is to focus on the form of an action, rather than its merits at the certification stage: Hollick v. Toronto (City), 3 S.C.R. 158.

[19] The statement of claim will be regarded as disclosing a cause of action as required by s. 5(1)(a) of the CPA unless it is plain and obvious that its claim cannot succeed notwithstanding all facts pleaded are assumed to be true unless manifestly incapable of proof: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, [2013] 3 S.C.R. 477 at para. 63 (“Microsoft”).

[20] In Slark (Litigation guardian of) v. Ontario, 2010 ONSC 1726, [2010] O.J. No. 5187 (S.C.J.) (“Slark”), Cullity J. provided additional guidance at para. 131 when he wrote:

It has also been held consistently that…the statement of claim must be read generously with allowance for inadequacies due to drafting deficiencies, and that the novelty of a cause of action is not, in itself, a factor that would justify a decision to strike. In addition, it has been held that such a decision should not be made if it would require a resolution of difficult legal questions in an area where the law is unsettled.[^3]

[21] A different standard applies to the four remaining certification requirements. The plaintiffs must establish “some basis in fact” for each one of them. As Rothstein J. explained in Microsoft, supra at paras. 103-105:

…it is worth reaffirming the importance of certification as a meaningful screening device. The standard for assessing evidence at certification does not give rise to “a determination of the merits of the proceeding”…nor does it involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny.

In any event, in my respectful opinion, there is limited utility in attempting to define “some basis in fact” in the abstract. Each case must be decided on its own facts. There must be sufficient facts to satisfy the [motions] judge that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage by reason of the requirements of…the CPA not having been met.

Finally, I would note that Canadian courts have resisted the U.S. approach of engaging in a robust analysis of the merits at the certification stage. Consequently, the outcome of a certification [motion] will not be predictive of the success of the action at the trial of the common issues. I think it important to emphasize that the Canadian approach at the certification stage does not allow for an extensive assessment of the complexities and challenges that a plaintiff may face in establishing its case at trial. After an action has been certified, additional information may come to light calling into question whether the requirements…continue to be met. It is for this reason that enshrined in the CPA is the power of the court to decertify the action if at any time it is found that the conditions for certification are no longer met…

[22] Ontario attacked every aspect of the plaintiffs’ motion for certification in its 104 page factum. The Province submits the plaintiffs have failed to satisfy any of the criteria set forth in ss. 5(1). I will deal with each subsection in turn.

E. Have the Plaintiffs fulfilled the certification criteria?

i. Does the statement of claim disclose a cause of action? s. 5(1)(a)

[23] As mentioned, systemic negligence, assault and battery, breaches of fiduciary duty and ss. 7 and 12 of the Charter are pleaded in the statement of claim.

[24] However, the common issues the plaintiffs propose are limited to negligence and breach of the Charter. Ontario concedes the statement of claim discloses a cause of action to that extent although the Province maintains the plaintiffs have raised non-justiciable issues.

[25] Section 5 of the MCSA delineates the Ministry’s role in relation to correctional institutions. In part it provides:

It is the function of the Ministry to supervise the detention and release of inmates…and to create for them an environment in which they may achieve changes in attitude by providing training, treatment and services designed to afford them opportunities for successful personal and social adjustment in the community, and, without limiting the generality of the foregoing, the objects of the Ministry are to,

(a) provide for the custody of persons awaiting trial or convicted of offences;

(b) establish, maintain and operate correctional institutions;

(c) provide programs and facilities designed to assist in the rehabilitation of inmates…

[26] Ontario submits the plaintiffs’ allegations concerning systemic negligence include core government policy decisions that should be struck. As McLachlin C.J. wrote in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (“Imperial Tobacco”) at para. 72:

There is general agreement in the common law world that government policy decisions are not justiciable and cannot give rise to tort liability.

[27] Ontario maintains the systemic negligence claim involves non-justiciable core policy decisions concerning housing conditions, the level of supervision, custody arrangements for inmates and the allocation of resources.[^4]

[28] The applicable principles are not in dispute. However, the plaintiffs maintain the systemic negligence allegations do not travel into prohibited territory for two reasons.

[29] First, the plaintiffs note that at para. 90 of Imperial Tobacco the Supreme Court of Canada concluded public policy decisions based on economic, social and political factors cannot be litigated “provided they are neither irrational nor taken in bad faith.”

[30] Second, and as acknowledged by Ontario, implementation of policy decisions may lead to liability. At para. 72 of Imperial Tobacco the Chief Justice wrote:

There is also general agreement that governments may attract liability in tort where government agents are negligent in carrying out prescribed duties. The problem is to devise a workable test to distinguish these situations.

[31] McLachlin C.J. said the distinction between policy decisions on the one hand and operational implementation on the other “is a vexed one, upon which much judicial ink has been spilled.”

[32] Cory J. offered this practical illustration in Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228 (“Just”) at pp. 1242-1243:

For example, at a high level there may be a policy decision concerning the inspection of lighthouses. If the policy decision is made that there is such a pressing need to maintain air safety by the construction of additional airport facilities with the result that no funds can be made available for lighthouse inspection, then this would constitute a bona fide exercise of discretion that would be unassailable. Should then a lighthouse beacon be extinguished as a result of the lack of inspection and a shipwreck ensue no liability can be placed upon the government agency…

On the other hand, if a decision is made to inspect lighthouse facilities the system of inspections must be reasonable and they must be made properly…Thus, once the policy decision to inspect has been made, the Court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.

[33] The plaintiffs submit it is clear from the statement of claim that they challenge operational implementation of policies Ontario adopted. They do not challenge the policies themselves nor maintain that Ontario is liable because it should have adopted other policies: Sumere v. Transport Canada, [2009] O.J. No. 4213 (S.C.J.).

[34] In some instances, it will be clear on the face of the pleading that bona fide policy decisions are under attack. Imperial Tobacco was such a case. In others, it may not be possible to undertake the required analysis until after trial. Just is an example of that situation.

[35] Having reviewed the statement of claim with these principles and examples in mind, it is not plain and obvious that the pleading discloses no reasonable cause of action because it seeks to litigate issues of impermissible scope. At this preliminary stage it appears to me the plaintiffs are challenging operational implementation of Ontario’s policies and not the policies themselves. The plaintiffs allege Ontario developed policies and procedures to protect the health and safety of inmates but failed to exercise reasonable care in their implementation. It is not plain and obvious the pleading discloses no reasonable cause of action in systemic negligence.[^5]

[36] Ontario also seeks to strike those portions of the statement of claim that relate to the alleged breaches of court orders.

[37] Ontario maintains the law is clear a breach of a court order does not, on its own, create a cause of action: Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83 at para. 58. In response the plaintiffs submit such orders were referenced solely to support allegations of negligence.

[38] Had breach of a court order been asserted as a cause of action it would have been struck. However, I accept the plaintiffs’ explanation. Read in context, the references in the statement of claim form part of the plaintiffs’ allegation Ontario owed a duty to exercise reasonable care to keep inmates safe and fell below the required standard of care.

[39] Ontario also seeks to strike those portions of the statement of claim which allege the Province owed and breached a fiduciary duty even though that cause of action is not mentioned in the common issues the plaintiffs propose.

[40] Ontario argues that the circumstances in which the Crown owes a fiduciary duty to anyone are limited, special and clearly not applicable to inmates in a correctional facility: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261 at para. 37; Proctor v. Canada (Attorney General), [2002] O.J. No. 350 (S.C.J.) at para. 65; Squires v. Canada (Attorney General), 2002 61315 (NB QB), 2002 NBQB 309 at paras. 67-68; R. v. Phaneuf, 2010 ONCA 901, [2010] O.J. No. 5631 (C.A.) at para. 22.

[41] I agree. The plaintiffs rely on passages drawn from decisions in criminal proceedings that do not address the issue Ontario raises in its motion to strike: R. v. Feeney, 2008 ONCA 756; R. v. Rosa, 2011 ONCJ 348. The plaintiffs submit the cause of action is a novel one. That simply isn’t so. Nor does their suggestion that evidence may emerge that changes the legal landscape resonate. A similar argument was made and rejected in Imperial Tobacco. At para. 25 the McLachlin C.J. wrote:

In the world of abstract speculation, there is a mathematical chance that any number of things might happen. That is not what the test on a motion to strike seeks to determine. Rather, it operates on the assumption that the claim will proceed through the court system in the usual way – in an adversarial system where judges are under a duty to apply the law as set out in (and as may develop from) statutes and precedent. The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding.

[42] It is clear the pleading discloses no reasonable cause of action insofar as the breach of fiduciary duty claim is concerned. That portion of the claim has no reasonable prospect of success and should be struck.

[43] Finally, Ontario says the statement of claim asks the court to find the Province vicariously liable in relation to medical treatment provided to inmates by physicians. Ontario submits such a claim is untenable and should be struck because the physicians are not agents of the Crown within the definition contained in s. 1 of PACA.

[44] The plaintiffs responded as follows in para. 14 of their reply factum:

The Plaintiffs do not allege any wrongdoing by physicians. The Plaintiffs allege that the Defendant was negligent in failing to provide adequate medical care by, inter alia, not providing Class members with medication or treatment prescribed by doctors and/or not allowing such medication or treatment in a timely and regular fashion. These are particular allegations of the Defendant’s negligence… [Emphasis in the original]

[45] I agree. Ontario’s conduct leading up to and following the involvement of a physician may be in issue. The quality of services provided by physicians retained by the Province on a fee-for-service basis is not.

[46] The statement of claim discloses a cause of action in systemic negligence[^6] and breach of ss. 7 and 12 of the Charter. The requirement imposed by s. 5(1)(a) of the CPA has been satisfied. The cause of action based on breach of fiduciary duty shall be struck.

ii. The motion to strike evidence

[47] The multi-volume record assembled on this motion includes affidavits from a number of sources. The moving parties rely on affidavits from the plaintiffs, a psychologist (Dr. Craig Haney) and a law clerk. Ontario filed affidavits from two Ministry employees, a psychiatrist (Dr. Philip Klassen), an actuary it retained and a lawyer.

[48] The Province contends the plaintiffs’ record includes a number of pieces of inadmissible evidence and asks for an order striking them.

[49] Ontario seeks to exclude:

(a) The verdicts of juries in coroner’s inquests conducted following the death of former EMDC inmates Laura Straughan and Kenneth Drysdale and a CD containing transcripts of the evidence of witnesses who testified during the Drysdale inquest (the “inquest material”);

(b) Articles and an editorial published in the London Free Press during the period 2011-2014 on a range of topics relating to the EMDC (the “newspaper articles”);

(c) A June, 2013 report of the Ombudsman of Ontario entitled “Investigation into the Ministry of Community Safety and Correctional Services response to allegations of excessive use of force against inmates – The Code” (the “Ombudsman Report”);

(d) Reasons for sentence given in the Ontario Court of Justice by McGrath J. in R. v. Tachbauer and by Pockele J. in R. v. Boucher on July 23 and August 20, 2012 respectively (the “reasons for sentence”) containing some commentary on the conditions at EMDC.

[50] I do not quarrel with some of Ontario’s submissions on this topic. A coroner’s inquest has a limited purpose. A coroner’s jury is not permitted to make findings of legal responsibility or to express any conclusion of law: Coroners Act, R.S.O. 1990, c. C.37, s. 31(2). The process differs from this one in material ways.

[51] Newspaper articles have been held to be inadmissible “because of their inherent frailties as hearsay evidence”: Retail, Wholesale and Department Store Union v. Saskatchewan, 1987 90 (SCC), [1987] 1 S.C.R. 460 at para. 61.

[52] In a mid-trial ruling, reports of the Royal Commission of Inquiry into the Blood System and of the Information Commission of Canada into a complaint arising from the destruction of audio tapes and transcripts were ruled inadmissible: Robb v. St. Joseph’s Health Care Centre, [1998] O.J. No. 5394 (C.A.) at paras. 209-210.[^7]

[53] An attempted use of transcripts from criminal proceedings to establish the truth of their contents in subsequent civil proceedings has been “soundly dismissed”: Royal Bank of Canada v. McArthur (1984), 1984 2166 (ON SC), 46 O.R. (2d) 73 (H.C.J.); Healthy Body Services Inc. v. 1261679 Ontario Inc., [2013] O.J. No. 4689 (S.C.J.) at paras. 47-50.

[54] A certification motion is not to be treated as an evidentiary free for all.

[55] However, the motion’s nature and purpose must be kept in mind. A motion for certification is procedural. Section 5(2) of the CPA expressly provides that an order certifying a class proceeding is not a determination of the merits of the proceeding.

[56] Evidence is assembled to address the requirement there be some basis in fact for the certification requirements set forth in ss. 5(1)(b) through (e) of the CPA.

[57] What exactly does “some basis in fact” mean? In McCracken v. Canadian National Railway Co., 2012 ONCA 445, Winkler C.J.O. wrote:

The “some basis in fact” principle is meant to address two concerns. First, there is a requirement that, for all but the cause of action criterion, an evidentiary foundation is needed to support a certification order.

Second, in keeping with the procedural scheme of the CPA, the use of the word “some” conveys the meaning that the evidentiary record need not be exhaustive, and certainly not a record upon which the merits will be argued.

[58] In AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949, Cromwell J. said those comments constituted “[h]elpful elaboration of the ‘some basis in fact’ standard”.

[59] In Hollick v. Toronto (City), supra, McLachlin C.J. cautioned, at para. 16:

…the certification stage is decidedly not meant to be a test of the merits of the action…Rather the certification stage focuses on the form of the action. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action…

[60] Dispositive findings are not made at this stage of the proceeding. Evidence of the kinds in issue on this motion has been relied upon. In Retail, Wholesale and Department Store Union v. Saskatchewan, supra at para. 61, Wilson J. doubted the finding of the trial judge “that the newspaper clippings were wholly inadmissible”.

[61] In Gay v. New Brunswick (Regional Health Authority 7), 2014 NBCA 10, the majority of the New Brunswick Court of Appeal upheld a motion judge’s decision to admit a report of a Commission of Inquiry “for the limited purpose of reinforcing the case for certification”.

[62] The Supreme Court of Canada relied on reports of the British Columbia Ombudsman and of special counsel retained by the Attorney General of British Columbia in upholding a certification decision in Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184 (“Rumley”).

[63] Even if unchallenged the inquest material, the newspaper articles, the Ombudsman Report and the reasons for sentence would not, standing alone, provide some basis in fact for the remaining elements of the certification test.

[64] They do not stand alone. In this case, Glenn Johnson and Michael Smith have sworn affidavits which detail their personal experiences and observations while incarcerated at EMDC. Those affidavits form the primary evidence on which the plaintiffs rely: for a similar case see Ewert v. Canada (Attorney General), 2016 BCSC 962 (S.C.).

[65] In my view, the inquest material, newspaper articles and to the limited extent it mentions EMDC, Ombudsman Report simply provide additional support for the plaintiffs’ assertions that their experiences were not isolated ones: Schwoob v. Bayer Inc., 2013 ONSC 2207 (S.C.J.) at para. 39.

[66] The reasons for sentence add nothing that is not already well known by all judges at any level who hear cases involving inmates from EMDC. Complaints of the kind made in this action have been made frequently and over an extended period of time. Judicial comment on overcrowding and harsh treatment is not limited to that institution: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 at paras. 28, 71 and 73.

[67] The evidence in question is not admissible for the truth of its contents. However, that does not mean it is wholly inadmissible on a motion for certification: Ewert v. Canada (Attorney General), supra at paras. 39 and 40. It may be considered and assessed, along with the frailties it may contain, to determine whether the moving party has met the onus of establishing some basis in fact for the certification requirements found in s. 5(1)(b) through (e) of the CPA.

[68] Ontario also challenges the admissibility of the report of Dr. Haney. I will briefly address that evidence in the context of s. 5(1)(c).

iii. Is there an identifiable class of two or more persons that would be represented by the plaintiffs? s. 5(1)(b)

[69] In the statement of claim and notice of motion the plaintiffs sought certification of the following class:

All persons incarcerated at the Elgin Middlesex Detention Centre between January 1, 2010 and August 25, 2013 including those held at the Elgin Middlesex Detention Centre pending trial or other court appearance.

[70] In their factum and amended litigation plan the plaintiffs propose to remove the reference to August 25, 2013 and extend the class period to the date of the certification order.

[71] Ontario submits the proposed class definition is too broad even as originally drafted.

[72] The applicable legal principles are not in dispute.

[73] Class definitions serve three purposes. They identify those with potential claims against the defendant, define the parameters of the action by describing those who should be bound by the result and define who is entitled to notice of certification: Sun-Rype v. Archer Daniels Midland, 2013 SCC 58, [2013] 3 S.C.R. 545 at para. 57 (“Sun-Rype”).

[74] The test the plaintiffs must meet was summarized in Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.) (“Cloud”) at para. 45. Goudge J.A. wrote:

The [plaintiffs] are required to show that the three proposed classes are defined by objective criteria which can be used to determine whether a person is a member without reference to the merits of the action. In other words, each class must be bounded and not of unlimited membership. As well, there must be some rational relationship between the classes and the common issues. The [plaintiffs] have an obligation, although not an onerous one, to show that the classes are not unnecessarily broad and could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issues.

[75] In Cloud the plaintiffs sought to certify an action on behalf of former students of the Mohawk Institute Residential School near the Six Nations Reserve and their families. Goudge J.A. explained why the identifiable class requirement had been met at para. 47:

Membership in the student class is defined by the objective requirement that a member have attended the school between 1922 and 1969. Membership in the families class requires that a person meet the objective criterion of being a spouse, common-law spouse or child of someone who was a student. Likewise, the siblings class is defined as the parents and siblings of those students. None of the three proposed classes is open-ended. Rather all are circumscribed by their defining criteria. All three classes are rationally linked to the common issues…in that it is the class members to whom the duties of reasonable care, fiduciary obligation and aboriginal rights are said to be owed and they are the ones who are said to have experienced the breach of those duties. Finally, because all class members claim breach of these duties and that they all suffered at least some harm as a result, these classes are not unnecessarily broad. All class members share the same interest in the resolution of whether they were owed duties and whether these duties were breached. Any narrower class definition would necessarily leave out some who share that interest.

[76] The class definition proposed by the plaintiffs fulfills those requirements.

[77] Ontario retained an actuary to analyze the Offender Tracking Information System (“OTIS”) housing records of EMDC during the originally proposed class period. He determined that 9,076 inmates were admitted to EMDC during that time. Clearly there is sufficient evidence in this case to show some basis in fact that far more than the statutory minimum of two persons will be able to determine they are members of the class: Sun-Rype, supra at para. 58.

[78] Nonetheless, Ontario contends the original class definition is inadequate for several reasons.

[79] First, the defendant contends the limitation period has expired insofar as some of the claims are concerned. That remains to be seen. Limitations issues should not, indeed cannot, be determined at this stage on this record: Cloud, supra at para. 61; Safioles v. Saskatchewan, 2015 CarswellSask 437 (Q.B.) at para. 28, leave to appeal granted 2015 SKCA 122.

[80] Second, Ontario maintains the proposed class is inherently conflicted because some of the plaintiffs’ complaints follow assaults perpetrated by other inmates. In R. v. Nixon (2002), 21 C.P.C. (5th) 269 (S.C.J.) (“Nixon”) the action related to fires set by inmates on a range in the Kingston Penitentiary. The motion judge found the proposed class definition contained an inherent conflict because it included those who had set fires and impeded correctional officers from responding. A motion for certification will not succeed if class members have conflicting interests: Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 555 at para. 40 (“Western Canadian”).

[81] However, a similar argument was made and rejected in Ewert v. Canada (Attorney General), supra. Blok J. distinguished Nixon. At para. 79, Blok J. wrote in part:

Unlike the situation in Nixon, it is not necessary to identify any wrongdoers. Similarly, it is not necessary to distinguish between compliant and non-compliant inmates…

[82] In Good v. Toronto (Police Services Board), 2016 ONCA 250 (“Good”), the Court of Appeal agreed with the Divisional Court when it said:

…it is of no consequence whether any member of the class did, in fact, commit a criminal offence or a breach of the peace. The police cannot justify the detention of a person based on information that they either did not have, or which they did not rely upon, in ordering a person to be detained.

[83] Here, too, the focus is on the defendant. The claims are based on the theory harm was occasioned because of the manner in which Ontario managed and operated EMDC. The plaintiffs allege systemic negligence which McLachlin C.J. described as “negligence not specific to any one victim but rather to the class of victims as a group”: Rumley, supra at p. 203.

[84] On that crucial front, the class is united.

[85] Third, Ontario contends the proposed class definition is overbroad because of the variations in the inmates’ experiences. Inmates are assigned to one of twenty distinct and separate units depending on their classification. They were incarcerated for different periods and in different conditions. Different policies apply depending on the inmate’s grouping.

[86] I disagree. Class members do not have to be identically situated as long as they share a central commonality: Good, supra at para. 63. That requirement has been met. The members of the defined class were admitted to one institution.

[87] One of Ontario’s affiants deposed the Institutional Services Police and Procedures Manual is “the main policy document for corrections in Ontario”.

[88] In Rumley, supra certification occurred. The class definition included students who attended Jericho Hill School between 1950 and 1992 – a span of forty two years. At p. 201 Chief Justice McLachlin acknowledged the applicable legal principles had evolved so dramatically “it is quite possible that the nature of a school’s obligations to its students has changed over time.”

[89] In Cloud, supra the student class included those who had attended the Mohawk Institute Residential School over a period of forty seven years.

[90] In Microsoft, supra the action related to conduct that was alleged to have occurred over a twenty four year period and involved a complicated chain of distribution.

[91] I disagree with Ontario’s suggestion the class the plaintiffs propose is conceptually different than ones accepted by the courts before.

[92] In my view, the class definition originally proposed by the plaintiffs fulfills the requirement of s. 5(1)(b) of the CPA. The fact some members of the proposed class may not be able to prove harm was suffered as a consequence of the allegedly negligent conduct is irrelevant to the analysis because merits-based criteria are not acceptable: Slark, supra, 2010 ONSC 1726, [2010] O.J. No. 5187 (S.C.J.) at para. 155; Cavanaugh v. Grenville Christian College, 2014 7350 (Div. Ct.) at para. 24.

[93] Ontario objected to the plaintiffs’ attempt to broaden the class period from August 25, 2013 to the date of the certification order.

[94] Section 7(1) of PACA requires a “claimant” to give notice at least sixty days before commencing an action against the Crown. Ontario maintains the attempt to extend the class period would be a nullity because the plaintiffs have not given notice of their intention to make a claim beyond August 25, 2013.

[95] I do not accept this argument because the plaintiffs gave notice to the Crown of their intention to pursue a claim under the CPA for “damages suffered by individuals incarcerated at the EMDC” by letter dated October 3, 2013. No time parameters were set forth.

[96] Nonetheless, I agree that the class period should not be extended on the certification motion. The class period set forth in the notice of motion mirrored the statement of claim. The evidentiary record was compiled with the issues identified in the notice of motion in mind. The extension of the class period was first proposed in the plaintiffs’ factum. I readily accept that the court has jurisdiction to amend the class definition at the certification stage. Parker v. Pfizer Canada Inc., [2012] O.J. No. 2867 (S.C.J.) provides one of many examples. However, in that case the amendment occurred “based on the current fully argued record”: para. 8.

[97] I do not feel comfortable broadening the class definition based on materials assembled with a shorter time frame in mind. While the motion was fully argued, the evidentiary record was not developed with an end date other than August 25, 2013 in mind.[^8]

iv. Do the claims of the class members raise common issues? s. 5(1)(c)

[98] The plaintiffs propose a list of questions dealing with liability in negligence and for breach of the Charter. Additional questions relate to damages, including aggregate and punitive damages.

[99] “Common issues” is defined in s. 1 of the CPA to mean:

(a) common but not necessarily identical issues of fact, or

(b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts.

[100] The applicable principles are set forth in the oft-cited decision of the Supreme Court of Canada in Western Canadian, supra at para. 39. McLachlin C.J. wrote:

The commonality question should be approached purposively. The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis. Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim. It is not essential that the class members be identically situated vis-à-vis the opposing party. Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member’s claim. However, the class members’ claims must share a substantial common ingredient to justify a class action.

[101] Based on the time period, the number of and differences between the units within EMDC, the variations in the experiences of the inmates including the duration of their stay and the range of complaints, Ontario submits the plaintiffs cannot fulfill this statutory requirement. Ontario’s position was neatly summarized at para. 226 of its factum as follows:

In summary, the facts required to determine how Ontario operated and managed EMDC are far too many and complex to be common to the entire class or to result in any significant advancement of any individual claim.

[102] On occasion that argument has carried the day: Hodge v. Neinstein, 2014 ONSC 4503, [2014] O.J. No. 3572 (S.C.J.); Inmates of Mountain Prison v. Canada, [1998] F.C.J. No. 573; Anderson v. Manitoba, 2014 MBQB 255; Thorburn v. B.C. (Public Safety and Solicitor General), 2013 BCCA 480 (“Thorburn”).

[103] However, the plaintiffs have a lengthy list of cases at their disposal which have concluded that issues of systemic wrongdoing are common even though the individual circumstances of the class members may have varied widely. The issue was addressed in Rumley, supra at p. 205:

…it seems likely that there will be relevant differences between class members here. It should be remembered however, that as the respondents have limited their claims to “systemic negligence”, the central issues in this suit will be the nature of the duty owed…to the class members and whether that duty was breached. Those issues are amenable to resolution in a class proceeding. While the issues of injury and causation will have to be litigated in individual proceedings following resolution of the common issue (assuming the common issue is decided in favour of the class, or at least in favour of some segment of the class), in my view the individual issues will be a relatively minor aspect of this case. There is no dispute that abuse occurred at the school. The essential question is whether the school should have prevented the abuse or responded to it differently.

[104] The Court of Appeal addressed and rejected similar challenges in Cloud. At paras. 64-67, Goudge J.A. wrote in part:

Although the existence of the systemic duty of care to all students and its precise nature may be more hotly contested here than in Rumley, nonetheless the issue is a significant one requiring resolution for each class member and is a proper common issue.

Moreover…the Supreme Court made clear that the comparative extent of individual issues is not a consideration in the commonality inquiry although it is obviously a factor in the preferability assessment…

I therefore agree that the appellants have met the commonality requirement. A significant part of the claim of every class member focuses on the way that the respondents ran the School It is said that their management of the School created an atmosphere of fear, intimidation and brutality that all students suffered and hardship that harmed all students. It is said that the respondents did this…by means of the policies and practices they employed…

[105] Ontario says Rumley and Cloud are distinguishable because the allegations “were focused on specific acts or omissions that more clearly affected all members”.[^9] Here, it maintains, the complaints are too general and all-encompassing.

[106] Ontario argues this case is akin to the failed attempt by a problem gambler to certify a class proceeding against the Ontario Lottery and Gaming Corp. (“OLG”). The plaintiff in Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501 (“Dennis”) alleged OLG failed to take reasonable care to bar from its premises those who had signed self-exclusion forms. At paras. 53 and 55 the Court of Appeal explained why individual inquiry in that case overwhelmed the alleged systemic wrong. Sharpe J.A. wrote:

There are certainly cases in which a class action will be an appropriate procedure to deal with a “systemic wrong”, a wrong that is said to have caused widespread harm to a large number of individuals. When a systemic wrong causes harm to an undifferentiated class of individuals, it can be entirely proper to use a class proceeding that focuses on the alleged wrong. The determination of significant elements of the claims of individual class members can be decided on a class-wide basis, and individual issues relating to issues such as causation and damages can be dealt with later on an individual basis, especially when the assessment of damages can be accomplished by application of a simple formula.

The claim at issue here does not fit that category. The central problem is that the alleged fault of OLG does not turn solely on the execution of the contract. It is inextricably bound up with the vulnerability of the individual class members. The complaint against OLG is that it failed to prevent them from harming themselves. The harm suffered by Dennis and other Class A Members resulted from their own actions. They were the ones who returned to OLG premises to gamble and to lose money. In that regard, they were like the thousands upon thousands of individuals who frequent OLG premises to gamble and, more often than not, lose money. Unsuccessful OLG gamblers have no recourse against OLG for their losses.

[107] That case involved “factual issues…relating to personal autonomy and responsibility” and failed to satisfy the criteria set forth in ss. 5(1)(b), (c) and (d) of the CPA.

[108] While the permutations and combinations of systemic negligence cases seem almost infinite, I do not agree this case is analogous to Dennis. While there may be a spectrum of conditions that inmates in EMDC face, prisoners are involuntarily housed in the same facility. Fundamental freedoms are suspended while there. Inmates are subject to policies and procedures developed and applied by persons employed by Ontario. Based on the evidence introduced so far, some seem to be of general application. Others vary depending on the unit in which the person is assigned.

[109] The grievances contained in the statement of claim cover a range of topics. However, the plaintiffs do not suggest a correctional institution is a vacation destination. Nor does the statement of claim contemplate a review of operations on an inmate by inmate or day to day basis. The plaintiffs maintain that Ontario was obligated to exercise reasonable care in implementing policies designed to prevent inmates from suffering physical and psychological harm while in the Province’s care and control and that there was a systemic failure to do so: Stark, supra at para. 21.

[110] The liability questions are broad ones which raise issues that are common to the class. Their determination is imperative to the resolution of the claims of every class member. Favourable answers will allow the claim of each class member to advance. Unfavourable answers will bring the action to an end. Their resolution will avoid duplication of steps and legal and factual analysis.

[111] In Microsoft even a “significant level of difference among the class members” did not prevent a finding of commonality: see, too, Anderson v. St. Jude Medical Inc. (2003), 2003 5686 (ON SC), 67 O.R. (3d) 136 (S.C.J.), leave to appeal denied, [2005] O.J. No. 269 (Div. Ct.). In Rumley, the Supreme Court of Canada concluded a standard of care that varied during the claim period simply meant “that the court may find it necessary to provide a nuanced answer” to the common liability question: at p. 202. The court noted material differences could be dealt with later if they were revealed: CPA, s. 10; L.R. v. B.C., 2003 BCSC 234 (S.C.).

[112] More recently, LeBel and Wagner JJ. summarized the applicable principle in Dell’Aniello v. Vivendi Canada Inc., 2014 SCC 1 at para. 46 in these terms:

…the common question may require nuanced and varied answers based on the situations of individual members. The commonality requirement does not mean that an identical answer is necessary for all members of the class, or even that the answer must benefit each of them to the same extent. It is enough that the answer to the question does not give rise to conflicting answers among the members.

[113] Ontario advances an additional argument in relation to the issues relating to the Charter. Rights are guaranteed to individuals. The Crown maintains the alleged breaches of ss. 7 and 12 will necessitate individual inquiries.

[114] Routine strip searches conducted at a Vancouver jail was the genesis for Thorburn, supra. The right to be secure against unreasonable search or seizure is guaranteed by s. 8 of the Charter. The plaintiff alleged the strip searches violated that right. The British Columbia Court of Appeal denied her attempt to certify the action on behalf of a class of detainees who had been the subject of such searches. The Court concluded the elements of the cause of action, as well as questions relating damages, required findings specific to each class member.

[115] In Lauzon v. Canada (Attorney General), [2014] O.J. No. 2402 (S.C.J.), the plaintiffs alleged the federal Crown violated freedom of expression guaranteed by s. 2(b) of the Charter. While the certification motion failed, Conway J. was of the view the questions pertaining to that cause of action raised common issues because their resolution did not require analysis of the individual circumstances of the inmates.

[116] In Good, supra the plaintiff alleged, among other things, that the defendants breached her rights not to be arbitrarily detained or imprisoned and to retain and instruct counsel without delay guaranteed by ss. 9 and 10(b) of the Charter respectively. The Divisional Court held that questions relating to those causes of action raised common issues because there was some basis in fact for saying the class members were exposed to the same conduct.[^10] The Court of Appeal affirmed that decision.[^11]

[117] In my view, the questions relating to the alleged breaches of ss. 7 and 12 of the Charter raise common issues because they relate to the allegation entrenched rights to security of the person and not to be subjected to cruel and unusual treatment or punishment were broadly violated. The focus is on the general operational methods adopted by EMDC.

[118] Ontario also submits the aggregate and punitive damages questions should not be certified as common issues. I will deal with them in turn.

[119] The jurisdiction to award aggregate damages is contained in s. 24(1) of the CPA. That subsection provides as follows:

The court may determine the aggregate or part of a defendant’s liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and

(c) the aggregate or part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

[120] The aggregate damages provision is procedural, relates to remedy and can only be invoked once liability, including the existence of a compensable loss, has been proven: Microsoft, supra at paras. 131-132.

[121] However, that does not mean the certification order must exclude the issue. In Microsoft at para. 134, Rothstein J. wrote:

The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue. However, this common issue is only determined at the common issues trial after a finding of liability has been made. The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge.[^12]

[122] Whether the question remains in the list of common issues or not is of little, if any, practical consequence. The decision to utilize s. 24 or not, rests with the common issues trial judge. In Good, supra the aggregate damages question was left in the list of common issues. I see no reason to remove it in this case.

[123] I am also satisfied the punitive damages question is a proper common issue. In my view, the affidavits of Mr. Johnson and Mr. Smith provide some basis in fact for its inclusion. The common issues trial judge will hear the evidence necessary to determine whether there is, indeed, any basis for such an award. In Good, supra a question concerning punitive damages was included in the list of common issues that was certified. At para. 82, Hoy A.C.J.O. wrote:

In my view, if liability were found, and at least part of the compensatory damages were assessed on an aggregate basis, it would be open to the trial judge to consider whether she had a sufficient measure of the compensatory damages to determine entitlement to and the quantum of punitive damages…or whether this could be determined only after any individual assessment phase.[^13]

[124] It seems to me that approach is appropriate in this case too.

[125] I am of the view the plaintiffs’ proposed list of common issues fulfills the certification requirement.

[126] Before leaving this topic I will briefly address the report of Dr. Haney. On June 27, 2014, the plaintiffs’ lawyers asked Dr. Haney “to provide a fair and balanced summary of the literature that exists” with respect to the effects of overcrowding.

[127] Dr. Haney’s August, 2014 report is one of the items Ontario seeks to strike.

[128] Dr. Haney set forth his conclusions at pp. 27-28 of his report. He said:

As I have noted above, prisoners in general react to harsh conditions of confinement in a variety of ways, most of which are subsumed in a process of adaptation that has been termed “prisonization.” Incarceration subjects prisoners to high levels of deprivation, degradation, and forceful control. They are required to adapt and adjust to extraordinary limitations on their freedom and dignity, and must become accustomed to high levels of humiliation and danger. These adaptations to prison and jail life can be painful but also harmful, and in ways may persist long after release, especially under severe, harsh, and mismanaged conditions. More specifically, as I have indicated, the general pains of incarceration and the risk of harm to which it exposes prisoners can be exacerbated by overcrowded conditions, by heightened levels of fear and danger, and by correctional mismanagement that intensifies the levels of deprivation, unpredictability, and risk of victimization to which prisoners are subjected.

[129] I would not exclude Dr. Haney’s report because, in my view, it meets the criteria for admission established by R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at para. 17.

[130] I have not referred to the content of Dr. Haney’s report previously because I am of the view the affidavits of Mr. Johnson and Mr. Smith provide “some basis in fact” for concluding the proposed liability and damage questions are common issues.

[131] Clearly Dr. Haney’s opinion was prepared for the purposes of certification only. While of limited utility, it provides some support for the proposition harm of the kind reported by the plaintiffs could well have been suffered widely if the conduct complained of occurred.

v. Is a class proceeding the preferable procedure for resolution of the common issues? s. 5(1)(d)

[132] Once again, the applicable principles are undisputed.

[133] Two questions must be answered. First, would a class action be a fair, efficient and manageable method of advancing the claim? Second, is a class action preferable to other reasonably available means of resolving the class members’ claims: Cloud, supra at para. 73.

[134] In answering those questions the court must be mindful of the three principal objectives of class proceedings: judicial economy, access to justice and behaviour modification: Microsoft, supra at para. 137; AIC Limited v. Fischer, supra at paras. 16-17; Hollick v. Toronto (City), supra at paras. 27-31.

[135] As in Cloud, resolution of the common issues is of critical importance to the class. None of the class members can succeed unless that trial yields the result they seek: Cloud, supra at paras. 81-85; Cavanaugh v. Grenville Christian College, supra at paras. 22 and 23.

[136] Even if successful on the common issues trial, questions requiring individual determination will remain but broad procedural powers can be exercised to assist in their timely and efficient resolution: CPA, ss. 24-26; Cassano v. Toronto Dominion Bank, 2007 ONCA 781, paras. 62-64.

[137] Judicial economy will be achieved. As mentioned, dozens of individual actions have been commenced. Other claimants wait in the wings. Many of those cases involve individuals who are members of the proposed class.

[138] A direction has been made pursuant to rule 37.15(1) of the Rules of Civil Procedure that motions in all of those proceedings are to be heard by me. The timely scheduling of a lengthy civil motion is, I am sad to say, increasingly difficult. The era post R. v. Jordan, 2016 SCC 27 will be even more problematic. Even herculean efforts may fail to give the parties the dates they seek if dozens of individual actions remain. Actions will bog down. Justice will be delayed and therefore, for all practical purposes, denied. That is never acceptable.

[139] The circumstances of the class are also important. Mr. Johnson and Mr. Smith deposed as follows:

The members of the proposed Class are not wealthy people. Many of them suffer with mental illness, like I do, and many struggle with substance abuse and have had conflict with the law. They are not able to afford to prosecute individual claims against the Province.

[140] There are vulnerabilities within the class. The court should be mindful of them.

[141] Certifying the proceeding will promote access to justice. Each piece of litigation will be expensive and hard fought. The cost of duplicating procedural steps over and over will be staggering and prohibitive for most individuals. Individual determinations carry with them the risk of inconsistent factual or legal findings.

[142] In my view, a class action is the most fair, efficient and manageable method of advancing the claim.

[143] Ontario suggests other methods of dispute resolution are available and appropriate. It relies on s. 28 of the regulation enacted under the MCSA.[^14] It provides:

Where an inmate alleges that the inmate’s privileges have been infringed or otherwise has a complaint against another inmate or employee, the inmate may make a complaint in writing to the Superintendent.

[144] Ontario submits that provision and the policies and processes the Ministry has implemented provide an adequate means for inmates to seek redress. I disagree. Monetary compensation is not available. Declarations cannot be issued. The process is of no benefit to those who are no longer in EMDC and does not address the period of time that is in issue here.

[145] I also do not agree that the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, offers a suitable alternative. That legislation has limited, if any, application to the issues raised in this action.

[146] Unquestionably, too, if liability is established, a declaration and damages will provide the greatest impetus for behaviour modification: Good, supra at para. 87; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at para. 29.

[147] In my opinion a class action is preferable to other means of resolving the class members’ claim.[^15]

[148] This certification requirement has also been satisfied.

vi. Have the plaintiffs fulfilled the three conditions set forth in s. 5(1)(e)?

[149] The representative plaintiffs are former inmates of EMDC who claim to have suffered physical and psychological harm as a result of systemic negligence and breach of rights guaranteed by the Charter.

[150] They have retained counsel with a wealth of experience in prosecuting class proceedings. The action is being and undoubtedly will be pursued with vigour.

[151] Given the nature of the allegations, the interests of the named plaintiffs do not conflict with those of other class members when pursuing the common issues.

[152] The amended litigation plan addresses various issues including communication with and notices to the class, individual actions which overlap with this one, interlocutory steps, document management and the steps following the common issues trial if successful. There are gaps in the amended litigation plan. It should have contemplated a discovery plan as rule 29.1 of the Rules of Civil Procedure requires. The schedule for the delivery of expert reports should be tied to the pre-trial, rather than the trial.[^16] It should contain even earlier dates by which the parties disclose to one another the nature of the expert evidence they propose to introduce. A pre-trial conference should be held much earlier than sixty days before trial as is currently contemplated. The plan should require a further trial management conference if resolution is not achieved at the pre-trial.

[153] However, those observations are not fatal. They may be addressed as the matter unfolds. As Goudge J.A. observed in Cloud, supra at para. 95:

The litigation plan produced by the appellants is, like all litigation plans, something of a work in progress. It will undoubtedly have to be amended, particularly in light of the issues found to warrant a common trial. Any shortcomings…can be addressed under the supervision of the case management judge once the pleadings are complete. Most importantly, nothing in the litigation plan exposes weaknesses in the case as framed that undermine the conclusion that a class action is the preferable procedure.[^17]

[154] I am satisfied the plaintiffs have met this requirement too.

F. Conclusion

[155] For the reasons given, the plaintiffs’ motion is granted. The class definition shall accord with the notice of motion, not the amended litigation plan. Otherwise the amended litigation plan is approved with the expectation it will evolve and change from time to time as the class proceeding progresses.

[156] Allegations that Ontario owed and breached a fiduciary duty are struck from the statement of claim. Ontario’s motion to strike is otherwise dismissed.

[157] Cost submissions not exceeding ten pages may be submitted by the plaintiffs by the close of business on September 12, 2016 and by Ontario by the close of business on September 30, 2016.

“Justice A. D. Grace”

Grace J.

Released: August 23, 2016

CITATION: Johnson v. Ontario, 2016 ONSC 5314

COURT FILE NO.: 2291/13/CP

DATE: 20160823

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GLENN JOHNSON and MICHAEL SMITH

Plaintiffs

• and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

REASONS FOR JUDGMENT

Grace J.

Released: August 23, 2016

[^1]: Being Part I of the Constitution Act, 1982 enacted by the Canada Act 1982 (U.K.), 1982, c. 11.

[^2]: The end date set forth in the statement of claim was August 25, 2013. In their factum the plaintiffs extended the claim period to the date of the certification order, if granted.

[^3]: Cullity J. later relied on Hunt v. Carey Canada Ltd., 1990 90 (SCC), [1990] 2 S.C.R. 959 in support of that proposition.

[^4]: Ontario relied on Walters (Litigation guardian of) v. Ontario, 2015 ONSC 4855, [2015] O.J. No. 4137 (S.C.J.); Wolf v. Ontario (Attorney General), 2012 ONSC 72 (S.C.J.); Russell v. Canada, 2000 BCSC 650 (S.C.); Iwanicki v. Ontario, [2000] O.J. No. 955 (S.C.J.); Coumont v. Canada (Correctional Service), [1994] F.C.J. No. 655 (T.D.).

[^5]: See, too, Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184 and Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.).

[^6]: For a recent example see Davidson v. Canada (Attorney General), 2015 ONSC 8008 (S.C.J.).

[^7]: See, too, L.R. v. B.C., 2003 BCSC 234 (S.C.) at paras. 49-52; Ombudsman Act, R.S.O. 1990, c. O.6, s. 24; Slark (Litigation Guardian of) v. Ontario, 2010 ONSC 1726, [2010] O.J. No. 5187 (S.C.J.) at para. 58; Gay v. New Brunswick (Regional Health Authority 7), NBCA 10 at paras. 18, 182-183.

[^8]: The Divisional Court decision in Good v. Toronto Police Services Board, 2014 ONSC 4583, aff’d 2016 ONCA 250 contains some important and thought provoking comments on the peculiarity of ever-changing class proceedings at paras. 13-16.

[^9]: The excerpt is drawn from para. 237 of Ontario’s factum.

[^10]: 2014 ONSC 4583 (Div. Ct.) at paras. 44-55 and 67.

[^11]: 2016 ONCA 250.

[^12]: Such an award was made in Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921. See, too, Markson v. MBNA Canada Bank (2007), 2007 ONCA 334, 85 O.R. (3d) 321 (C.A.) at paras. 49-52.

[^13]: See, too, Rumley v. British Columbia, 3 S.C.R. 184 at p. 203.

[^14]: R.R.O 1990, Reg. 778, s. 28.

[^15]: Cases that address this issue include AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949; Good v. Toronto (Police Services Board), 2016 ONCA 250 at 87; Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.) at paras.91-92; Lauzon v. Canada (Attorney General), 2014 ONSC 2811 (S.C.J.).

[^16]: As rule 53.03(2.2) of the Rules of Civil Procedure requires.

[^17]: See, too, Fakhri v. Alfalfa’s Canada Inc., 2003 BCSC 1717, [2003] B.C.J. No. 2618 (S.C.) at para. 77; Healey v. Lakeridge Health Corp., [2006] O.J. No. 5621 (S.C.J.) at para. 4.