Court File and Parties
COURT FILE NO.: CV-20-00638480 DATE: 2020/11/10
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
ATTORNEY GENERAL FOR ONTARIO, Applicant
- and -
PERSONS UNKNOWN, Respondents
BEFORE: J. Steele J.
COUNSEL: Benjamin Ries, for Advocacy Centre for Tenants Ontario Domenico Polla, for the Attorney General for Ontario Kristin A. Ley, for Federation of Rental Housing Providers of Ontario
ENDORSEMENT
Overview
[1] The issue to be determined at this case conference is whether a representation order should be issued under Rule 10.01(1)(f) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194. The representation order sought would appoint the Advocacy Centre for Tenants Ontario (“ACTO”) to represent unknown tenants who have an interest in the proceeding.
[2] If ACTO is appointed under Rule 10, then the Federation of Rental Housing Providers of Ontario (“FRPO”) seeks a corresponding representation order in respect of member landlords.
[3] The onus is on the party seeking the Rule 10 order to establish that it is a proper case for a representation order (Police Retirees of Ontario Inc. v. Ontario Municipal Employees’ Retirement Board (1997), 1997 CanLII 12271 (ON SC), 35 O.R. (3d) 177 (S.C.)). FRPO’s position is that if the Court sees fit to grant ACTO a representation order then FRPO should similarly be granted a representation order.
[4] For the reasons set out below, I am not satisfied that this is a proper case for a Rule 10 representation order. I, therefore, dismiss ACTO’s and FRPO’s request.
Factual Background
[5] On March 19, 2020, on an ex parte application to the court brought by the Attorney General for Ontario, Chief Justice Morawetz made an order suspending the regular enforcement of residential evictions in Ontario while regular court operations were suspended, except with leave of the court. This was a unique order granted in exceptional and urgent circumstances at the inception of the COVID-19 pandemic where the court exercised its inherent control over its own process to suspend certain operations.
[6] In the brief endorsement accompanying the Suspension Order, Chief Justice Morawetz stated:
I am satisfied, for the reasons set out in the record, that it is an appropriate mitigation strategy for the health and safety of Court Services Division Enforcement Officers, and to avoid adding further risk of community transmission of COVID-19 in the Province of Ontario, to suspend the enforcement of eviction orders and writs of possession, unless the court orders otherwise.
[7] Chief Justice Morawetz made an order granting leave to the Attorney General to bring the application ex parte without service of the notice of application on parties to residential eviction orders. The Order stated:
THIS COURT ORDERS that, during the suspension of regular court operations by the Chief Justice, the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended unless the court orders otherwise upon leave being granted to a party by the court pursuant to the court’s procedures for urgent motions”.
[8] Further to an ex parte motion to vary brought by the Attorney General, Chief Justice Morawetz amended the Suspension Order to include an end date that coincided with the end of the calendar month in which the province’s state of emergency was terminated (the “Varied Suspension Order”). Legislation to end the state of emergency was subsequently introduced and the government announced on July 22, 2020, that the state of emergency would end on July 24, 2020.
[9] ACTO, along with two tenants affected by the Varied Suspension Order, brought a motion to set aside the Varied Suspension Order and to restore the original Suspension Order. That motion is the underlying motion that is now being case managed.
[10] ACTO sought an urgent, interim stay of the Varied Suspension Order. On August 2, 2020, the motion for a stay was dismissed by Justice Myers (Attorney General for Ontario v. Persons Unknown, 2020 ONSC 4676). In his August 2, 2020 Decision, Justice Myers stated (at para. 46):
[…]If the matter is to proceed despite this order, one or more case conferences are required to set a process to determine what notice may be required, who will be parties, and whether one or more representation orders ought to be made under Rule 10[…]
[11] Enforcement of eviction orders resumed in Ontario as of August 4, 2020.
Procedural Background
[12] At the request of the parties and further to Justice Myers’ dismissal of the motion for a stay in the August 2, 2020 Decision, I convened a case conference with the parties.
[13] My powers at this case conference are prescribed by Rule 50.13(6) which states:
At the case conference, the judge or case management master may, if notice has been given and it is appropriate to do so or on consent of the parties,
(a) make a procedural order
(b) convene a pre-trial conference;
(c) give directions; and
(d) in the case of a judge,
(i) make an order for interlocutory relief; or
(ii) convene a hearing.
[14] Justice Myers gave notice to the parties that if the matter is to proceed, the representation matter would be dealt with at a case management conference.
[15] At the first case conference, ACTO and FRPO requested Rule 10 orders be made and indicated that they consented to the Rule 10 orders. Specifically, they requested that ACTO be appointed to represent unknown tenants who have an interest in this proceeding and FRPO be appointed to represent unknown landlords. The Attorney General indicated that they were not opposed.
[16] A second case conference call was held on October 23, 2020. On that call, among other things, the parties and I discussed whether these issues should be left for the motions judge. Due to the urgency of the motion and the concern about not expending additional resources on the motion if a Rule 10 order would not be granted, the parties asked the court to consider these issues in advance. I note that this approach is also consistent with Justice Myers’ decision, discussed above.
[17] As the onus is on the party seeking the representation order to establish that it is a proper case for one, I asked the parties to file written submissions. The parties filed written submissions on November 2, 2020, and made brief oral submissions on November 5, 2020.
[18] In their submission, the Attorney General, although not opposed to the Rule 10 request, set out various considerations for the court.
Issues
- Is this an appropriate case for a representation order?
- Is ACTO an appropriate representative?
Analysis
[19] Rule 10 permits the court to appoint one or more persons to represent “any person or class of persons who are unborn or unascertained or who have a present, future, contingent or unascertained interest in or may be affected by the proceeding and who cannot be readily ascertained, found or served.” Rule 10 orders can be made in certain types of enumerated proceedings, as well as in respect of “any other matter where it appears necessary or desirable to make an order [under Rule 10].” Orders made in such proceedings are binding on the represented persons, subject to the court’s discretion to hold otherwise under Rule 10.03.
[20] Because FRPO indicated that it wished to be appointed under Rule 10 only if the court appointed ACTO under Rule 10, I have focused on ACTO in this analysis.
Is this an appropriate case for a representation order?
[21] A Rule 10 representation order must fall within one of the enumerated types of proceedings (in 10.01(a) through (e)), or it must be “any other matter where it appears necessary or desirable to make an order under this subrule.” The immediate case does not fall within the enumerated types of proceedings and thus the issue is whether it is a “matter where it appears necessary or desirable to make an order.” This is very broad language and gives the court discretion to determine whether a proceeding is one that is “necessary or desirable” for a Rule 10 order.
[22] In my opinion, this matter is entirely different from the types of proceedings enumerated in Rule 10.01(1)(a) through (e). These proceedings include
- the interpretation of a deed, will, contract or other instrument,
- the interpretation of a statute, order in council, regulation or municipal by-law or resolution,
- the determination of a question arising in the administration of an estate or trust,
- the approval of a sale, purchase, settlement or other transaction,
- the approval of an arrangement under the Variation of Trusts Act, and
- the administration of the estate of a deceased person.
[23] ACTO’s motion seeks to set aside the Varied Suspension Order, which was an order made to address court-related operations in an urgent and unique situation. In my opinion, ACTO’s motion does not fall within the enumerated types of proceedings and it is therefore necessary to turn to proceedings contemplated by the basket clause of Rule 10.01(1)(f).
[24] ACTO argued that the purpose of Rule 10 is to facilitate a form of access to justice. ACTO argued that Rule 10 and the Class Proceedings Act, 1992, S.O. 1992, c. 6:
[…]comprise a set of procedural tools reflecting a central principle: while this Court makes its substantive decisions on the basis of adversarial submission, practical barriers to the individual participation of would-be litigants ought not necessarily deprive the Court the opportunity to nevertheless hear the positions of those persons, nor deprive those persons of justice.
I agree with ACTO on this point but, as I shall now explain, the case at bar is not an appropriate one for resort to Rule 10.
[25] Is this case then an appropriate case for a representation order for the tenant respondents? In this regard, the court must consider whether the balance of convenience favours the appointment of a representative under Rule 10.01(1) for a class of persons.
[26] The test for balance of convenience was set out in Police Retirees of Ontario Inc. v. Ontario Municipal Employees’ Retirement Board:
…[T]he test to be applied in considering a request for a representation order is not whether the individual members of the group can be ascertained or found, but rather whether the balance of convenience favours granting of a representation order instead of individual service upon each member of the group and individual participation in the proceedings. Such an interpretation is consistent with the legislative purpose behind this provision, which is designed to encourage an expeditious means of resolving contentious issues without the cost and expense associated with a Rule 12 order. In analyzing the balance of convenience, I must consider the inconvenience that would be experienced by each party if the representation order were or were not granted.
[27] There is no doubt that it would be more convenient to appoint ACTO to represent tenants who were unnamed in the application instead of identifying and serving all tenants across Ontario who have outstanding eviction orders. The Attorney General indicated that there are currently 176 outstanding unenforced residential eviction orders in the province. ACTO pointed out that “[t]he original order and the variance order were both granted based on the Attorney General’s assertion that this class (among others) is neither readily ascertained nor readily served – which is precisely why they are termed “Persons Unknown” in the style of cause.” ACTO also argued that the following factors would weigh in favour of finding that the balance of convenience favours granting ACTO the Rule 10 order: “the proposed group’s financial capacity to litigate, the urgency of resolving the motion, size, and accessibility.”
[28] I also note that the class of persons that ACTO seeks to represent would all presumably have an interest in the proceedings. ACTO described the proposed group as being “comprised of those tenants who are (or will be, within the foreseeable time during which this Application is before the Court) subject to Landlord and Tenant Board (“LTB”) eviction orders in the midst of COVID-19”. ACTO argued that their interests in setting aside the Varied Order would be aligned.
[29] Without deciding the points, I shall assume that the balance of convenience would favour a Rule 10 order, and I shall assume that the class of persons ACTO seeks to represent have a common interest in the outcome. Notwithstanding these assumptions, this is not the type of proceeding where a Rule 10 order ought to be granted.
[30] In reviewing the case law provided to me, I note that Rule 10 orders have been granted where a group of persons are in the same position vis-à-vis the other party. For example, Rule 10 orders have been granted:
- in pension cases so that the pension plan members are represented by a person who is seeking a specific redress for them. Instead of each pension plan member individually bringing an action, it is far more logical for a Rule 10 order to be made in appropriate circumstances. (Ryan v. Ontario Municipal Employees Retirement Board, [2006] O.J. No. 618 (S.C.); Police Retirees of Ontario Inc. v. Ontario Municipal Employees’ Retirement Board).
- to a member of Slate Falls Nation, in an action for damages as a result of flooding of reserve land and the traditional territory. (Slate Falls Nation v. Canada (Attorney General), 2004 CanLII 30894).
- representative orders are also common in proceedings under the Companies’ Creditors’ Arrangement Act, for example, for groups of former employees with claims for pension benefits and compensation for involuntary terminations (Canwest Publishing Inc./Publications Canwest Inc., Re, 2010 ONSC 1328).
[31] By contrast, each tenant facing eviction is unique and has their own contractual relationship with the landlord and their own unique health, financial and other circumstances. This is not a group of persons with a similar claim to advance, who require a representative for convenience purposes.
[32] ACTO wants to represent tenants in the province who are facing eviction and to stay the Varied Suspension Order. This would presumably be a desirable result for the group ACTO proposes to represent. However, that is not what the Suspension Order or Varied Suspension Order were concerned with. These orders were made to control the court’s processes under urgent and highly unusual circumstances. This is different than a case where a representative is granted status under Rule 10 to bring forward litigation on behalf of a group of individuals who have a common claim (as in a pension case or CCAA proceedings). Each tenant who is facing eviction in the province, and their landlord, will have unique circumstances. Such matters must be determined on a case-by-case basis by the Court or the Landlord and Tenant Board.
[33] In my view, this is not an appropriate type of case for a Rule 10 order.
Is ACTO an appropriate representative?
[34] I considered whether ACTO is an appropriate entity to be named as a representative in this case. In this regard, I note that none of the parties could direct me to a Rule 10 decision where an advocacy group with no direct interest in the proceeding has been appointed as a representative.
[35] There are important principles that can be drawn from the Rule 10 cases. The court has looked to various considerations such as the commonality of interests of the group and the characteristics and qualifications of the proposed representative.
[36] Based on the case law, a representative should be either a member of the group, or an association or union to which all the members belong. This is logical as orders and settlements under Rule 10 are binding on the represented persons. Accordingly, before such an order is made, the court must be satisfied that the proposed representative is the appropriate one for the group.
[37] In Ryan v. Ontario Municipal Employees Retirement Board, the court considered who was an appropriate party to be named as a representative of a class of pension plan members under Rule 10. The court determined that Ryan, who was not a member of the pension plan and therefore was not part of the class, was not an appropriate representative. Ryan was the president of the Ontario division of the Canadian Union of Public Employees, and many pension plan members belonged to CUPE. However, the court refused to name him as one of the representatives and stated (at paragraph 21):
In my view, for an individual to be appointed as a Representative Plaintiff, he or she must represent the plaintiff group in the sense of having an individual cause of action which is the same cause of action as that of the members of the planned group.
[38] ACTO is not a member of the proposed class and is not an association or entity to which all the members belong. ACTO has numerous attributes that would align with the proposed class of tenants facing eviction and that support ACTO’s position that it is well suited to represent the group, including: “significant expertise in the subject matter,” “a governance structure that ensures that the rights and concerns of its tenant community guides it policy and work projects,” “demonstrated expertise in systemic housing advocacy,” and “sophistication with the litigation process.”
[39] However, ACTO is an advocacy group. It is not a tenant facing eviction, nor does it currently represent a specific individual facing eviction. In this case, given all of the foregoing problems and that ACTO does not even share the cause of action with the group, in my opinion this is not a proper case in which to name it as representative.
[40] (I parenthetically note that the fact that the entities seeking the representation orders are not natural persons would not be a bar to a Rule 10 appointment. In Police Retirees of Ontario Incorporated v. Ontario Municipal Employees’ Retirement Board, a case regarding entitlement to certain excess funds held by the pension plan, the court granted a representation order to a corporation called Police Retirees of Ontario (“PRO”). In doing so, the court noted the membership of the group (retired police personnel) and its recognition by OMERS (the defendant). The retired police personnel were automatically enrolled in PRO upon their retirement. The persons that PRO sought to represent under the Rule 10 order were members of PRO.)
[41] I question whether the intention of Rule 10 was to facilitate access to courts by advocacy groups. Rule 10 is typically used where there are several individual persons who have a similar claim, and the balance of convenience favours one party (who also has an interest in the claim) advancing the claim on behalf of the group. Interest groups frequently intervene in court proceedings to bring a broader public policy perspective to the individual matters before the Court. Here, however, ACTO proposes to bring this proceeding from a policy perspective without any participation in a lis before the Court. It effectively seeks to turn an intervention into the main litigation. While there are no doubt many vulnerable tenants facing eviction in Ontario, the Court and the Landlord and Tenant Board have processes by which people who wish to do so can be heard with or without counsel. There are others with causes of action who could bring proceedings were they minded to do so. In my judgment, considering all of the factors, I do not see the proposed representation as appropriate within Rule 10 and the applicable case law.
Conclusion
[42] For the above reasons, ACTO’s and FRPO’s request for the Rule 10 representation orders is denied.
[43] When the motion to set aside the Varied Suspension Order was brought, the moving parties were ACTO and two individual tenants who were subject to unenforced eviction orders. ACTO advised that unfortunately these two individuals have each been subject to enforcement action and evicted from their homes. This motion is therefore moot for them.
[44] A consequence of the above determination is that neither FRPO or ACTO has standing to bring this proceeding. Accordingly, I am dismissing it.
[45] If the parties cannot agree about the matter of costs, they may make brief submissions in writing beginning with ACTO’s and FRPO’s within 20 days after the release of this direction, followed by the applicant’s submissions within a further 20 days.
November 10, 2020
DATE
JUDGE’S SIGNATURE