Court File and Parties
COURT FILE NO.: (Dadzie v. Ontario et al.) CV-16-558376-00CP (Lapple v. Ontario et al.) CV-16-558633-00CP
DATE: 2021-07-20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GODDAY DADZIE and AL ZEEKEHMENS, Plaintiffs AND: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE ATTORNEY GENERAL OF CANADA, Defendants
AND BETWEEN: RAYMOND LAPPLE, JEROME CAMPBELL and SAMIR ABDELGADIR, Plaintiffs AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, Defendant
BEFORE: Glustein J.
COUNSEL: Scott Hutchison, for the plaintiffs in Court File No. CV-16-558376-00CP Kevin Egan and Chelsea Smith, for the plaintiffs in Court File No. CV-16-558633-00CP Aryan Ziaie and Jamie Shilton, for the plaintiffs in both actions Court Peterson and Colin Bourrier, for the defendant Her Majesty the Queen in right of Ontario in both actions David Tyndale and S. Stewart Guthrie, for the defendant The Attorney General of Canada in Court File No. CV-16-558376-00CP
HEARD: July 12, 2021
Reasons for Decision
OVERVIEW
[1] The parties bring motions on undertakings and refusals in Court File No. CV-16-558376-00CP (the Dadzie Action) and in Court File No. CV-16-558633-00CP (the Lapple Action).
[2] In the Dadzie Action, the plaintiffs Godday Dadzie (Dadzie) and Al Zeekehmens (collectively, the Dadzie Plaintiffs) seek an order compelling the defendant, The Attorney General of Canada (Canada), to (i) comply with its undertakings and (ii) answer the questions improperly refused at (a) the examination for discovery of its witness, John Helsdon, on November 16, 18 and 19, 2020, and (b) Mr. Helsdon’s cross-examination on August 21, 2017 (on his affidavit sworn on June 12, 2017). I refer to this motion as the Dadzie Plaintiffs’ Motion.
[3] In the Lapple Action, the plaintiffs Raymond Lapple, Jerome Campbell, and Samir Abdelgadir (collectively, the Lapple Plaintiffs) seek an order compelling the defendant, Her Majesty the Queen in right of Ontario (Ontario) to (i) comply with its undertakings and (ii) answer the questions improperly refused at the examination for discovery of its witness, Ken Fitzgerald, between September 29, 2020 and October 2, 2020 and on October 15, 2020. I refer to this motion as the Lapple Plaintiffs’ Motion.
[4] In the Dadzie Action, Canada seeks an order compelling the Dadzie Plaintiffs to answer the questions improperly refused at their examinations for discovery. I refer to this motion as the Canada Motion.
[5] Ontario brings a joint motion in both the Dadzie and Lapple Actions seeking an order compelling the Dadzie Plaintiffs, and the representative plaintiffs Raymond Lapple and Jeremy Campbell in the Lapple Action, to answer the questions improperly refused at their examinations for discovery. I refer to this motion as the Ontario Motion.
[6] At the hearing, I addressed each undertaking and refusal sought in the Dadzie Plaintiffs’ and Lapple Plaintiffs’ Motions by way of handwritten endorsement prepared during the course of the hearing and released concurrently with these Reasons for Decision. Those particular undertakings and refusals raised individual issues which I considered and assessed at the hearing.
[7] The present Reasons for Decision address the Canada and Ontario Motions.
[8] During the examinations for discovery in the Lapple Action, the Lapple Plaintiffs refused 162 questions. During the examinations for discovery in the Dadzie Action, the Dadzie Plaintiffs refused 41 questions. Those questions can be grouped as follows:
(i) Ontario and Canada both asked questions regarding the representative plaintiffs’ medical histories. Canada also asked a number of additional questions regarding the Dadzie Plaintiffs’ employment histories. I refer to these questions collectively as the “Individual Damages Questions”;
(ii) Canada asked the Dadzie Plaintiffs further questions regarding their criminal records and offences, other experiences in detention, and other interactions with the criminal justice system before and after the Dadzie Plaintiffs’ periods of incarceration in the correctional institutions which are the subject of the class action.[^1] I refer to these questions collectively as the “Reasons for Detention Questions”; and
(iii) Canada also asked some questions related to anger management counsellors seen by Dadzie following his release from detention, and to the conditions of Dadzie’s detention in any other country. I refer to these questions collectively as the “Additional Dadzie Questions”.
[9] At the hearing, the impugned refusals summarized at para. 8 above were not addressed on an individual basis by counsel. Rather, counsel made submissions on whether those questions were proper as a class of questions. These Reasons for Decision address the issues arising from the Canada and Ontario Motions.
[10] In brief, I find that the refusals of the Dadzie and Lapple Plaintiffs were proper. Consequently, I dismiss the Ontario and Canada Motions. In particular:
(i) While discovery questions may be asked on a class action relating to individual issues, those issues must be relevant to the common issues before the court at the common issues trial;
(ii) The Individual Damages Questions are not relevant to the common issue before the court of “systemic negligence”, since the reasonableness of Ontario and Canada’s conduct must be determined without reference to the circumstances of any individual class members;
(iii) The Individual Damages Questions are not relevant to the common issue before the court of a claim for aggregate damages, which requires that such a determination be made without proof by individual class members;
(iv) In any event, the Individual Damages Questions in the Dadzie Action related to the Dadzie Plaintiffs’ employment histories are irrelevant as there is no claim for loss of income;
(v) The Reasons for Detention Questions are not relevant since there is no claim in the Dadzie Action that Canada improperly selected which migrants detained under the Immigration and Refugee Protection Act, S.C. 2001, c. 28 (IRPA) would be transferred to the Included Correctional Institutions. Rather, the common issue before the court is whether Canada breached its duty of care or the Dadzie Plaintiffs’ Charter rights by a systemic transfer of detained migrants to the Included Correctional Institutions, given Canada’s alleged (a) knowledge of the staffing-related lockdowns (SRLs) in the Included Correctional Institutions and (b) acquiescence in the use of SRLs in the detention of Class Members in the Included Correctional Institutions. Consequently, any individual basis for a transfer (relating to past detention or criminal history) is irrelevant to the common issue; and
(vi) The Additional Dadzie Questions were properly refused as either overreaching (as there is no evidence that the counsellor notes sought relate to Dadzie’s conditions of detention), or irrelevant (as the conditions of his detention in another country are irrelevant to the allegations of systemic misconduct in the Included Correctional Institutions and are also irrelevant as Reasons for Detention Questions for the reasons summarized at subparagraph (v) above).
FACTS
Overview of the actions
[11] The common factual basis of these certified class actions is the alleged widespread use of SRLs in the Included Correctional Institutions.
[12] An SRL occurs when, due to a shortage of prison staff, correctional authorities lock inmates in their cells pending resolution of the shortage. During the class period of May 30, 2009 to November 27, 2017, the representative plaintiffs allege that SRLs were common at the Included Correctional Institutions, with many inmates being regularly locked in their cells for hours, days, and even weeks at a time.
[13] The representative plaintiffs allege that during lockdowns (i) inmates were isolated and confined to small physical areas; (ii) a range of services and amenities were cancelled, including personal visits, phone calls, medical appointments, access to showers, access to counsel, laundry services, and other programming, including religious programming; and (iii) inmates had no access to the outdoors or exercise.
[14] The representative plaintiffs allege that as a result of the frequency, duration, indefinite nature, and other features of the SRLs that occurred at the Included Correctional Institutions during the class period, they were deprived of normal entitlements and basic human rights. Consequently, the representative plaintiffs allege that the class members suffered damages through severe psychological, emotional, and physical harm.
[15] In the Lapple Action, the Lapple Plaintiffs allege that Ontario was negligent and breached its duties under ss. 7 and 12 of the Charter of Rights and Freedoms (Charter) in Ontario’s operation of the Included Correctional Institutions and its administration of a system in which SRLs were prevalent.
[16] The certified class in the Lapple Action includes all persons who were inmates of the Included Correctional Institutions while on remand, serving a sentence, or incarcerated for violating parole between May 30, 2009 and November 27, 2017.
[17] In the Dadzie Action, the Dadzie Plaintiffs allege against Ontario similar claims to reduction advanced in the Lapple Action. The Dadzie Plaintiffs also claim that the Canadian Border Services Agency (CBSA), as represented by Canada, was negligent and breached its duties under ss. 7 and 12 of the Charter by placing migrants detained pursuant to the IRPA at the Included Correctional Institutions and then failing to ensure that the migrants were provided adequate living conditions.
[18] The certified class in the Dadzie Action includes all persons who were detained pursuant to the IRPA at the Included Correctional Institutions, during the same class period.
Procedural History
[19] On November 27, 2017, this Court certified the Lapple and Dadzie Actions as class proceedings. The common issues certified by this Court in these actions that are relevant to this motion are:
(i) By its use of [SRLs] in the [Included] Correctional Institutions … did [Ontario] breach its duty of care owed to the Plaintiffs?
(ii) Was the duty of care breached [by Canada] in (a) its transfer and detention of Class Members under the [IRPA] and its regulations in the Included Correctional Institutions and (b) its acquiescence in the use of [SRLs] in the detention of Class Members in the Included Correctional Institutions?
(iii) Is this an appropriate case for an award of aggregate damages pursuant to section 24(1) of the Class Proceedings Act, 1992, S.O. 1992 [CPA]?
(iv) If the answer to the above is “yes”, what is the appropriate quantum of such damages?
Examinations for discovery and refusals at issue
[20] Canada and Ontario examined the representative plaintiffs for discovery between May and August 2020.
[21] During the examinations for discovery, the representative plaintiffs gave detailed evidence regarding their individual experiences in the correctional institutions in which they were incarcerated, the lockdown conditions they experienced, and the medical care with which they were provided while detained.
[22] The representative plaintiffs refused to answer the Individual Damages Questions, the Reasons for Detention Questions, and the Additional Dadzie Questions.
ANALYSIS
General principles governing examinations for discovery in class actions
[23] Under ss. 15(1) and 35 of the CPA, the discovery obligations set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the Rules), apply to class proceedings.
[24] Rule 31.06(1) requires a party to answer any question “relevant to any matter in issue in the action”.
[25] In an ordinary civil action, relevancy is determined by the pleadings: Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 129.
[26] However, class proceedings, unlike the vast majority of individual civil actions, are typically tried in bifurcated form. In the first stage, not every issue raised in the pleading is tried. Rather, only the common issues defined in the certification order are tried. The remaining individual issues are then adjudicated through a court-designed and supervised process under s. 25 of the CPA: Abdulrahim v. Air France, 2010 ONSC 3953, at para. 13; Levac v. James, 2020 ONSC 2606, at para. 12.
[27] Prior to the resolution of the common issues, discovery is limited to the common issues. In Abdulrahim, Strathy J. (as he then was) held, at para. 13:
The scope of the common issues trial is, therefore, defined by and limited to the common issues. For the same reason, discovery prior to the common issues trial should be limited to the issues that are common. Once those issues have been resolved, discovery may be ordered of individual class members (including the representative plaintiffs) on individual issues. It would not serve efficiency or economy to conduct discovery of the representative plaintiffs on matters that are not relevant to the common issues.
[28] Discovery is limited to the common issues since the nature, extent and form of discovery of individual issues will be determined following the common issues trial. In Abdulrahim, Strathy J. held, at para. 22:
The damages suffered by the representative plaintiffs are individual issues and the nature, extent and form of discovery of those issues will be determined following the common issues trial. I am satisfied that [the defendant] will suffer no prejudice in proceeding to the common issues trial without discovery on those issues.
[29] Similarly, in Levac, Morgan J. held, at para. 12:
In civil litigation [the scope of discovery] generally starts with the pleadings, although in a class proceeding common issues trial it is really the more fine-tuned delineation of the issues in the certification judgment that governs. Here it is the newly certified common issues that will define the subject-matter scope of any further discoveries.
[30] However, the above principles do not preclude questions related to individual issues if that discovery evidence is also relevant to the common issues.
[31] In Lipson v. Cassels Brock & Blackwell LLP, 2019 ONSC 5524, at paras. 45-46, Perell J. held that the general rule that individual issues should not be subject to discovery until after the common issues trial was not “monolithic” since “the interplay between common issues and the individual issues trial will vary and the general rule should not be treated as an absolute rule”.
[32] Consequently, Perell J. held that “questions that are relevant to the individual issues may be asked if the questions are relevant to the common issues”: Lipson, at para. 52.
[33] Perell J. followed the settled law which restricted class action discovery to common issues, noting that such a restriction “actually subtracts or restricts the scope of the discovery because the common issues are, in any event, distillated from the pleadings”: Lipson, at para. 52.
[34] In Lipson, Perell J. noted, at paras. 43-44, that there could be judicial efficiency in having individual cases determined at the same time as a common issue trial. However, he held that such efficiency would only be appropriate if the discovery questions related to common issues as well as the individual issues: Lipson, at para. 52.
[35] In Johnston v. Sheila Morrison Schools, 2011 ONSC 6843, the class action related to alleged institutional abuse at a private school. Perell J. allowed discovery questions about the knowledge of the representative plaintiffs’ parents about the conditions at the school. The relevance of individual damages questions was not before the court.
[36] In Johnston, the impugned questions related to the common issues raised by third party claims against parents who permitted their children to attend the school.[^2] Further, the questions would also have been relevant to common issues arising from conditions at the school.
[37] In Levac, Morgan J. allowed discovery questions on the medical histories of individual class members. However, in that case, the representative plaintiff sought to prove that the defendant doctor's negligence caused the class member patients' injuries by demonstrating a statistical association between a subset of patients of the defendant doctor and the incidence of bacterial infections among the same patients. Given these facts, Morgan J., at para. 45, accepted that discovery of these individual class members on their medical histories "might indicate the existence of an alternative cause" of the bacterial infections at issue and thus might refute the plaintiff's theory of liability.
[38] Consequently, in Levac, the questions as to individual medical histories were relevant to the common issue of causation, since the plaintiff's methodology for proving causation depended on those class members' individual medical evidence: at paras. 3-6.
[39] Based on the above case law, I summarize the applicable principles for examination for discovery in a class action as follows:
(i) Prior to the common issues trial, discovery is limited to the common issues;
(ii) Common issues provide a narrower scope for discovery than the pleadings, since they are based on the list of common issues upon certification; and
(iii) Questions on individual issues which are also relevant to common issues must be answered.
Application of the general principles to the case at bar
[40] I now apply the above principles to the refusals at issue.
The Individual Damages Questions
[41] Ontario and Canada assert that answers to the Individual Damages Questions are required since they are relevant to the common issues of negligence and aggregate damages. I do not agree.
[42] I first address the negligence claim and then consider the aggregate damages claim.
(i) The negligence claim
a. General principles applicable to a systemic negligence class action
[43] I first consider the general principles applicable to a systemic negligence class action and then apply those principles to the issue of whether individual damages questions are relevant to a systemic negligence claim at a common issues trial.
[44] A claim in systemic negligence arises when there is a "failure to have in place management and operations procedures that would reasonably have prevented” harm to the class members: Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at para. 30.
[45] Consequently, the central issue in a systemic negligence case is “the nature of the duty owed by [the defendant] to the class members and whether that duty was breached”: Rumley, at para. 36.
[46] In Rumley, the Court held that certification of a systemic negligence common issue was appropriate because the reasonableness of the defendant's conduct could "be determined without reference to the circumstances of any individual class member": at para. 30. The Court further held that following the resolution of the common issues, "the issues of injury and causation will have to be litigated in individual proceedings": at para. 36.
b. Individual damages questions are not relevant to a systemic negligence claim at a common issues trial
[47] In the present case, the Court held upon certification that the negligence claim is based on a common issue of “systemic negligence“: Dadzie v. Ontario, 2017 ONSC 7101, at para. 11.
[48] The common issue relevant to the negligence claim against Ontario is whether it owed (and breached) a duty of care “in its operation and management of the [Included] Correctional Institutions”.
[49] The common issue relevant to the negligence claim against Canada is whether it owed (and breached) a duty of care “in its operation, management, and administration of the immigration detention scheme under the Immigration and Refugee Protection Act and its regulations” and whether it breached a duty of care by (i) “its transfer to and detention of Class Members under the Immigration and Refugee Protection Act and its regulations in the Included Correctional Institutions” and (ii) its “acquiescence in the use of [SRLs] in the detention of Class Members in the Included Correctional Institutions”.
[50] This Court ordered, at para. 3 of the certification order in both the Dadzie and Lapple Actions, that “the only causes of action asserted against the defendants are systemic negligence and breaches of sections 7 and 12 of the [Charter] resulting from [SRLs]”.
[51] As noted above, the court in Rumley held that the circumstances of any individual class member were not relevant to a systemic negligence claim in which the court considers the common issue of the reasonableness of the defendant’s conduct.
[52] In the present case, proof of an individual's damages is not relevant to the common issue of systemic negligence pleaded against Ontario and Canada. It is only after the common issues are resolved, assuming they are resolved in the representative plaintiffs’ favour, that the question of the individual damages (beyond any aggregate award) suffered by a particular individual may become relevant.
[53] Ontario submits that the Individual Damage Questions relate to “whether the plaintiffs suffered damages, and if so, whether there was a causal link between those damages and the alleged negligent conduct”. However, under the approach in Rumley, damages and causation are not elements of the common issues phase of a systemic negligence class action. In the present case, regardless of whether any individual plaintiff suffered damages caused by the SRLs at the Included Correctional Institutions, systemic negligence can be determined by the court based solely on the defendants’ conduct.
[54] Canada submits that there would be a “factual void” or “factual vacuum” if the Individual Damages Questions were not permitted. Canada relies on the statement of Cory J. in MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at para. 9, that "Charter decisions should not and must not be made in a factual vacuum.”
[55] However, the representative plaintiffs provided extensive and detailed responses to the questions asked by the defendants regarding matters relevant to the determination of the common issues, including their experiences of incarceration, the frequency, duration, and other conditions of lockdowns, and medical care they received while incarcerated. There is no basis for Canada's submission that the trial judge determining the common issues will be faced with a factual void if the refusals at issue in these motions are upheld.
[56] Consequently, the Individual Damages Questions are not relevant to the systemic negligence claim to be determined at the common issues trial. The questions are relevant only to individual damages and causation issues which are to be determined after the common issues trial.
(ii) The aggregate damages claim
a. General principles applicable to a claim for aggregate damages
[57] I first consider the general principles applicable to a claim for aggregate damages and then apply those principles to the issue of whether individual damages questions are relevant to a claim for aggregate damages.
[58] The availability and assessment of aggregate damages under s. 24 of the CPA requires a “top down” approach, rather than a “bottom-up” approach, whereby the aggregate assessment of damages “is a figure arrived at through an aggregate assessment of global damages, as opposed to through an aggregation of individual claims requiring proof from individual class members”: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, 111 O.R. (3d) 346, at para. 126.[^3]
[59] The “top down” approach is required by s. 24(1)(c) of the CPA, which mandates that aggregate damages be awarded only where “the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members”.
[60] Consequently, the court on a common issues trial can accept a base-level theory of aggregate damages to assess compensatory damages and Charter damages for vindication and deterrence, without proof from individual class members, under s. 24 of the CPA: Brazeau v. Canada (Attorney General), 2019 ONSC 1888, at paras. 4, 393-94, 401, and 439-49; reversed but affirmed on this issue, 2020 ONCA 184.
[61] On an aggregate damages claim for compensatory damages, the issue is whether the court can find, on the evidence at the common issues trial, that there is a commonality of harm in that all class members will suffer to some degree with a base level of suffering experienced by all class members: Reddock v. Canada (Attorney General), 2019 ONSC 5053, at paras. 179 and 269.
[62] Such an approach has been adopted to order base-line aggregate damages in claims involving systemic negligence and Charter breaches for solitary confinement: Brazeau, Reddock, and Francis v. Ontario, 2020 ONSC 1644, at para. 296.
b. Individual damages questions are not relevant to an aggregate damages claim
[63] In 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp., 2012 ONSC 6549, Perell J. upheld the plaintiffs’ refusals of questions regarding individual damages. He held, at paras. 111-12:
In the case at bar, for the examinations for discovery, both parties seem to have designed their questions about an aggregate assessment as if an aggregate assessment required information about each class member's particular financial and business circumstances and about how each class member was individually harmed by the Defendants' alleged misconduct. That is not an aggregate assessment; it is the opposite of an aggregate assessment, and such questioning is not consistent with the top-down approach mandated for the certification of this action.
As revealed by the proceedings for certification, it may be anticipated that the evidentiary basis for an aggregate assessment will involve the opinion evidence of experts who will be able to use the information about allegedly systemic mark-ups and sourcing fees to show that the class members suffered an aggregate loss. The extent to which the Representative Plaintiffs or any individual class member suffered financial losses is not an aggregate assessment. The Defendants will understand the case they have to meet when they received the experts' reports in accordance with the Rules of Civil Procedure.
[64] Similarly, in the present case, the representative plaintiffs tendered evidence from Dr. James Austin and Dr. Stuart Grassian on the certification motion.
[65] Dr. Austin is a sociologist with experience studying correctional institutions, who also provided evidence in both Brazeau and Francis. He opined on the appropriateness of SRLs. Dr. Grassian, who provided evidence in Brazeau, Reddock, and Francis, opined on the common harms suffered by class members experiencing such lockdowns.
[66] At the trial of the common issues, expert evidence will be filed to establish liability and commonality of harm suffered on a class-wide basis.
[67] Ontario submits that “there needs to be an evidentiary baseline” for the calculation of aggregate damages and that this baseline “must be established through the evidence of the representative plaintiffs”. Similarly, Ontario submits that certain claims for damages “may be highly individual in nature and may not be suitable for assessment across the class” and, as such, “[t]he defendants are entitled to evidence from the individual representative plaintiffs to test” the aggregate damages methodology that will be advanced by the representative plaintiffs.
[68] However, Ontario cites no authority in support of the submission, and Ontario’s approach would be inconsistent with (i) the requirement under s. 24(1)(c) of the CPA that aggregate damages must “reasonably be determined without proof by individual class members”, (ii) the top down approach required under Fulawka, and (iii) the decision of the Court of Appeal in Brazeau which permitted a baseline assessment of aggregate damages without proof by individual class members.
[69] Consequently, the Individual Damages Questions are not relevant to the aggregate damages claim to be determined at the common issues trial. The questions are relevant only to individual damages and causation issues which are to be determined after the common issues trial.
(iii) Conclusion on Individual Damages Questions
[70] For the above reasons, the Individual Damages Questions are not relevant to either the systemic negligence or aggregate damages claim to be determined at the common issues trial and were properly refused.
[71] With respect to Individual Damages Questions related to the employment histories of the representative plaintiffs, only Canada asked such questions and, as such, these refusals were limited to the Dadzie Action. In addition to the above reasons for upholding the refusals of the Individual Damages Questions, these employment history related questions were also properly refused as there is no claim for pecuniary damages made against the defendants.
The Reasons for Detention Questions
[72] Canada sought the discovery evidence of the Dadzie Plaintiffs with respect to past records of offences, past instances of detention, and other past interactions with the criminal justice and refugee systems. Canada submits that these questions are relevant to the reasons for which the representative plaintiffs were confined in the Included Correctional Institutions.
[73] However, there is no claim against Canada for improper selection of migrant detainees under the IRPA for transfer to the Included Correctional Institutions. Rather, the common issue before the court at the common issues trial is based on Canada’s alleged (i) “transfer and detention of Class Members under the [IRPA] and its regulations in the Included Correctional Institutions” and (ii) “acquiescence in the use of [SRLs] in the detention of Class Members in the Included Correctional Institutions”.
[74] Similarly, the allegation in para. 3 of the Amended Statement of Claim is that:
Rather than fulfilling its own mandate to detain immigrants in reasonable and humane conditions, the CBSA transfers immigrant detainees to provincial correctional institutions that are wholly inadequate for their intended use. The CBSA has knowledge of the poor conditions, including chronic lockdowns, ,at these institutions. However, the CBSA continues to rely on indefinite incarceration in the Provincial Institutions as a population management tool and turns a blind eye to the ongoing human rights violations that are taking place.
[75] Consequently, the reasons for detention are not relevant to the common issues, as defined in the certification order and as set out in the pleadings. To the contrary, if the claim had been for improper selection of immigrant detainees for transfer, those claims may have been highly individualized and may not have been certified as a common issue.
[76] For the above reasons, the Reasons for Detention Questions are not relevant to the common issues and were properly refused.
The Additional Dadzie Questions
[77] The first question seeks the notes and records of anger management counsellors whom Dadzie saw following his release from detention.
[78] The second question asks Dadzie about his conditions of detention in any other country, and if he had ever previously been detained in another country.
[79] Canada characterizes these questions as seeking information that is relevant to the conditions of Dadzie's detention in the Correctional Institutions. I do not agree that these questions are relevant to the common issues.
[80] With respect to the first question, there is no evidence of any discussion with an anger management counsellor about conditions in the Included Correctional Institutions during an SRL. Any such question seeking such information would be an “overreaching, fishing expedition”: Doucet v. The Royal Winnipeg Ballet (The Royal Winnipeg Ballet School), 2019 ONSC 6982, at paras. 29, 32.
[81] Further, to the extent that the request for the anger management counsellors’ notes in the first question seeks evidence relevant to Dadzie’s personal damages, such a question is not proper for the reasons discussed above for the Individual Damages Questions.
[82] With respect to the second question seeking the conditions of Dadzie’s past detentions, that question is irrelevant. Any experience of detention in another country is unrelated to allegations of systemic negligence that was certified as a common issue in the Dadzie Action.
[83] Further, if the second question seeks the information of past detention for the purposes of providing the reason for detention, the question would not be relevant for the reasons set out above for the Reasons for Detention Questions.
[84] Consequently, the Additional Dadzie Questions were properly refused.
ORDER AND COSTS
[85] For the above reasons, I find that the representative plaintiffs’ refusals were proper. I dismiss the Ontario and Canada Motions.
[86] Counsel agreed that costs of all the motions (including those refusals and undertakings addressed in my handwritten endorsement) be in the cause and I so order.
GLUSTEIN J.
Date: 2021-07-20
COURT FILE NO.: (Dadzie v. Ontario) CV-16-558376-00CP (Lapple v. Ontario) CV-16-558633-00CP
DATE: 2021-07-20
ONTARIO SUPERIOR COURT OF JUSTICE
GODDAY DADZIE and AL ZEEKEHMENS Plaintiffs
AND:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE ATTORNEY GENERAL OF CANADA Defendants
AND BETWEEN:
RAYMOND LAPPLE, JEROME CAMPBELL, and SAMIR ABDELGADIR Plaintiffs
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant
REASONS FOR DECISION
Glustein J.
Released: July 20, 2021
[^1]: The impugned Ontario provincial correctional institutions (defined by the plaintiffs as the Included Correctional Institutions) are those defined in the Ministry of Correctional Services Act, R.S.O. 1990, c. M. 22, excluding the Elgin-Middlesex Detention Centre, the Ontario Correctional Institute and the St. Lawrence Valley Correctional and Treatment Centre.
[^2]: In an earlier decision in Johnston v. Sheila Morrison Schools at 2011 ONSC 3398, Perell J. permitted the defendants to bring the third party claim against the parents of the class members. That decision was reversed by the Divisional Court at 2012 ONSC 1322. However, Perell J.’s analysis of the scope of discovery in a class action (in his reasons at 2011 ONSC 6843) was not before the Divisional Court.
[^3]: There is some debate in the case law as to whether the “sampling” approach rejected in Fulawka remains valid law given the Court of Appeal’s subsequent decision in Markson v. MBNA Canada Bank, 2007 ONCA 334, at para. 45 (see the comments of Belobaba J. in Fresno v. CIBC, 2020 ONSC 4288, at paras. 20-23). However, the top down approach for aggregate damages set out in Fulawka is settled law.