COURT FILE NO.: CV-17-570771-00CP
DATE: 20210909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULLIAN JORDEA REDDOCK
Plaintiff
- and -
ATTORNEY GENERAL OF CANADA
Defendant
H. Michael Rosenberg and James Sayce for the Plaintiff
Lucan Gregory, Elizabeth Cunningham, and Samantha Pillon, for the Defendant
Mirilyn R. Sharp and Nancy S. Barkhordari for Abdulkadir Mohamud and Julian Heath
HEARD: In writing
PERELL, J.
REASONS FOR DECISION – COSTS ENTITLEMENT
Excitabat enim fluctus in simpulo ut dicitur Gratidius, ("For Gratidius raised a tempest in a ladle, as the saying is"): Cicero (106 BC – 43 BC) De Legibus.
A. INTRODUCTION
[1] This is a post-judgment class action under the Class Proceedings Act, 1992.[^1] The class action is against the Federal Government (Canada) with respect to its operation of penitentiaries.
[2] This is a motion about whether Abdulkadir Mohamud and Julian Heath, who were inmates at a federal penitentiary, have an entitlement to costs for a motion that they brought but that was never argued. Mr. Mohamud and Mr. Heath seek costs against the Representative Plaintiff and/or against the Defendant Canada for what I shall call the “Opt-Out Motion.”
[3] As I shall explain below, Messrs. Mohamud and Heath’s Opt-Out Motion: (a) was contradictory having regard to the position being taken by Messrs. Mohamud and Heath, which was that they were not putative Class Members; (b) was unnecessary, because Messrs. Mohamud and Heath were correct in denying being Class Members; (c) was never argued; and (d) is now moot. If Messrs. Mohamud and Heath were incorrect, (which they were not), then the Opt-Out Motion was premature and became moot when they achieved a right to opt out.
[4] For the reasons that follow, I order the costs of the Opt-Out Motion payable in the cause of Messrs. Mohamud’s and Heath’s respective external individual actions against Canada. I do not order any costs payable to Messrs. Mohamud and Heath in the class action in which they have only recently become putative Class Members with a right to opt out.
B. ANNOTATED FACTS AND ANALYSIS
1. Introduction
[5] What follows is an annotated description and analysis of the unfortunate factual background to the Opt-Out Motion and to the immediate motion for costs for the Opt-Out Motion.
[6] I say that the factual background is unfortunate because all of the Representative Plaintiff, Canada, Mohamud, Heath, and their respective lawyers were from time to time one to the other procedurally stone-deaf or stone-blind or both. I say this sympathetically and not critically because the intentions of all the lawyers and litigants were honourable and the circumstances, as the discussion below will reveal, are very complicated. All the lawyers were acting in what they thought was in the best interests of their clients and sometimes the lawyers were acting altruistically in what they thought was in the best interests of their client’s opponent.
[7] I am annotating the factual background because the circumstances of the Opt-Out Motion are extraordinary, and they are complicated. The annotations will explain why the Opt-Out Motion was all of contradictory, premature, unnecessary, unargued, and moot. The annotations will provide most of the analysis and explanation for my order that the costs of the Opt-Out Motion are payable in the cause of Messrs. Mohamud’s and Heath’s respective external individual actions.
2. Facts and Analysis
[8] Pursuant to the Class Proceedings Act, 1992, I am case managing the Ontario class actions, Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General). Pursuant to the Québec Code of Civil Procedure,[^2] Justice Chantal Masse, of the Cour supérieure du Québec is case managing the Québec class action, Gallone c. Canada (Attorney General). Brazeau, Reddock, and Gallone are intertwined class proceedings against Canada.
[9] In each of Brazeau, Gallone, and Reddock, the Class Members were or are inmates of penitentiaries operated by the Correctional Service of Canada.
[10] In each of Brazeau, Gallone, and Reddock, the Class Members have been awarded a judgment for aggregate damages. The Class Members are entitled to a distribution of those awards totaling approximately $28 million net after legal fees and expenses. It is estimated that this fund will be distributed amongst a maximum of approximately 17,000 inmates assuming a 100% take-up in all three class actions.
[11] In each of the actions, the Class Members were awarded damages as a partial remedy for their unlawful placement in administrative segregation contrary to ss. 7 and 12 of the Canadian Charter of Rights and Freedoms.[^3]
[12] In each of Brazeau, Gallone, and Reddock, the Class Members were also granted judgments to have their individual damages determined. In other words, as a result of the existing judgments in Brazeau, Gallone, and Reddock, Canada’s liability has been established and the Class Members are entitled to a share of an aggregate damages award. Further, the Class Members are entitled to pursue Canada in individual issues trials for more compensation.
[13] Brazeau was commenced in Ontario on July 17, 2015. In Brazeau, on behalf of inmates of penitentiaries operated by the Correctional Service, the Representative Plaintiffs, Christopher Brazeau and David Kift, sued Canada for breaches of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms.
[14] Gallone was commenced in Québec on February 24, 2016. In Gallone, on behalf of inmates of penitentiaries operated by the Correctional Service in Québec, Arlene Gallone sued Canada for breaches of ss. 7 and 12 of the Charter.
[15] On December 14, 2016, Brazeau was certified as a class proceeding.[^4] Koskie Minsky LLP is Class Counsel in Brazeau.
[16] On January 13, 2017, Gallone was authorized as a class proceeding. Trudel Johnston & Lespérance is Class Counsel in Gallone.
[17] Reddock was commenced on March 3, 2017. In Reddock, on behalf of inmates of penitentiaries operated by the Correctional Service, the Representative Plaintiff, Jullian Jordea Reddock, sued Canada for breaches of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms.
[18] On June 21, 2018, Reddock was certified as a class proceeding.[^5] Koskie Minsky LLP and McCarthy Tétrault LLP are co-Class Counsel in Reddock.
[19] With a carve out for Class Members of the Brazeau or Gallone actions, the Reddock class is composed of inmates of federal penitentiaries who were placed in administrative segregation for more than 15 days after November 1, 1992. The Class Definition for the Reddock action is [with my emphasis added]:
All persons, except Excluded Persons, as defined below, who were involuntarily subjected to a period of Prolonged Administrative Segregation, as defined below, at a Federal Institution, as defined below, between November 1, 1992 and the present, and were alive as of March 3, 2015 (“the Class”); [my emphasis added]
Excluded person are: […]
[20] As required by the Class Proceedings Act, 1992, the putative Class Members of Reddock were given notice of the consent certification of the class action. The certification notice in Reddock provided that putative Class Members could opt out by September 19, 2018. The June 21, 2018 Consent Certification Order provides in paragraph 10 that: no Class Member may opt out of this class proceeding after the Opt-out Deadline, except with leave of the Court.
[21] As I shall explain further below, at the time that the notices of certification were distributed neither Mr. Mohamud nor Mr. Heath were putative Class Members.
[22] On March 25, 2019, the Brazeau Representative Plaintiffs were granted a summary judgment in which the Class Members were awarded aggregate Charter damages of $20 million for vindication and deterrence.[^6] Their individual compensatory damages were to be assessed at individual issues trials. Canada appealed the judgment in Brazeau.
[23] On August 29, 2019, Mr. Reddock was granted a summary judgment in which the Class Members were awarded aggregate damages of $20 million for vindication, deterrence, and compensatory damages - with additional compensatory damages to be payable after individual issues trials.[^7] The Class also received pre-judgment interest of $1,120,797 on the compensatory portion of the damages award, so that the judgment was around $21 million for Charter damages. Canada appealed the decision in Reddock.
[24] The Ontario Court of Appeal heard the Brazeau appeal and the Reddock appeal together. On March 9, 2020, the Court affirmed the Charter damages award in Reddock, and the Court affirmed the judgment on liability but not the methodology of the Charter damages award in Brazeau.[^8] The Charter damages in Brazeau were subsequently reassessed, and I awarded the Class Members $20 million for vindication, deterrence, compensation, and pre-judgment interest. For the purposes of individual issues trials, the per capita award was deemed to be compensatory damages.[^9]
[25] There was no trial in the Gallone action. However, Canada agreed to a consent judgment in which it agreed to a liability proportionate to its liability in Brazeau and Reddock. On September 10, 2020, Justice Masse ordered that the aggregate damages in Gallone be determined in the same manner as in Brazeau and Reddock on a pro rata basis for the class size in Gallone. Thus, on consent, the Gallone Class Members recovered a judgment of $5,948,769.23.
[26] In late 2020, with there being partial judgments in each of Brazeau, Gallone, and Reddock, the attention of the Superior Courts in Ontario and Québec turned to the complicated matter of determining a distribution plan for the consolidated aggregate damages award. The courts also turned to the matter of determining a protocol for the individual issues trials for the Class Members who wished more compensation than provided by the net aggregate damages award of approximately $28 million.
[27] While the courts were engaged in the process of determining a distribution and an individual issues protocol, on September 17, 2020, external to the class proceedings in Brazeau, Gallone, and Reddock, Mr. Mohamud sued Canada for $5 million in damages for his allegedly wrongful placements in administrative segregation and for other alleged wrongdoings.
[28] Mr. Mohamud was an inmate of Collins Bay Prison in Kingston, Ontario between June 6, 2017 and November 1, 2019. Mr. Mohamud’s claim against Canada was based on a six-month placement in administrative segregation between October 12, 2018 and April 9, 2019 and a four-month placement between July 5, 2019 and November 1, 2019.
[29] Canada responded to the service of Mr. Mohamud’s Statement of Claim by advising Mr. Mohamud’s lawyers that since he did not opt out of the Reddock class action, he could not bring his external action but he must participate in the class action. Canada advised Mr. Mohamud’s lawyers that Canada would move for a stay of the claims covered by the Reddock action but that Mr. Mohamud’s other claims could proceed in his external individual action. Canada repeated this advice and this position in a letter to Mr. Mohamud’s (and Mr. Heath’s) lawyers on January 11, 2021.
[30] Canada’s advice and its position was incorrect. Mr. Mohamud was first placed in administrative segregation on October 12, 2018, which is after the opt-out deadline of September 19, 2018 in Reddock. Mr. Mohamud was not a Class Member in Reddock. It matters not that the certified class definition in Reddock defines the class as inmates placed in administrative segregation “between November 1, 1992 and the present.” As I shall explain further below, the cutoff for “the present” is the deadline for a putative Class Member to opt out and to determine whether he or she is a Class Member.
[31] Mr. Mohamud’s lawyers always knew that the position being taken by Canada was incorrect. I repeat, when Mr. Mohamud started his external individual action, Mr. Mohamud was not a Class Member of Reddock notwithstanding what Canada or Class Counsel may have thought and his lawyers knew this to be the case.
[32] In these circumstances, in my opinion, what Messrs. Mohamud’s and Heath’s lawyers could and should have done is to demand that Canada deliver its Statement of Defence or immediately bring on its stay motion.
[33] There never was a need for Mr. Mohamud (or Mr. Heath) to bring the Representative Plaintiff or Class Counsel into this fray, and there never was a need to ask Class Counsel for their position as to whether Mr. Mohamud (or Mr. Heath) could pursue Canada in an individual action that was external to the class proceeding.
[34] The irony and inconsistency of Mr. Mohamud and Mr. Heath’s position was that they were seeking to have Canada and Class Counsel acknowledge an entitlement to opt out when what was known to Mr. Mohamud and Mr. Heath was that they were already external to the class proceeding and, therefore, did not need an entitlement to opt out. Thus, Messrs. Mohamud and Heath should have demanded that Canada deliver its Statement of Defence or that Canada immediately bring on its stay motion.
[35] Canada’s stay motion could have been brought before me in the class action or it could have been brought before a motions judge in Messrs. Mohamud’s and Heath’s respective external individual actions.
[36] Had the stay motion been brought before me, I would have dismissed Canada’s motion for a stay on the grounds that Mr. Mohamud and Mr. Heath respectively were not Class Members whose actions could be stayed.
[37] Messrs. Mohamud and Heath are, however, incorrect in asserting that the matter of their opt-out rights was a matter exclusively within my jurisdiction as the judge case managing the class action. Although the judge case managing the class action has the jurisdiction to decide who is – or who is not – a Class Member, a motions judge in Messrs. Mohamud’s and Heath’s respective external individual actions would also have the jurisdiction to determine their status as parties and to determine whether there were any issue estoppels.
[38] Had the motion been brought in the external individual actions, then the motions judge would or should have come to the same decision that I would have reached because that was the true circumstances of the case. However, if the motions judge erred and granted a stay, then I would have allowed Mr. Mohamud and Mr. Heath to opt out of Reddock, and they could then have applied for a lifting of the stay, which I believe I could have granted provided that Mr. Mohamud and Mr. Heath also brought motions in their respective actions to lift the stay and made those motions returnable before me.
[39] Unfortunately, matters did not proceed as they could or should have unfolded. No motions were immediately brought and rather the parties bantered and bickered about how to proceed. I repeat what I said above that while the parties were not listening or understanding one another, they were acting responsibly in complicated procedural circumstances.
[40] Meanwhile, on October 6-8, 2020, there was a three-day joint hearing of the courts of Ontario and Québec to determine the distribution protocol and to determine the individual issues protocol for Brazeau, Gallone, and Reddock. I was continuing to case manage the Ontario actions and Justice Masse was case managing Gallone.
[41] On the protocol motion, Justice Masse and I reserved judgment. What followed the joint hearing was a series of joint decisions comprised of four Joint Protocol Decisions. These decisions ultimately established a Distribution Plan and an Individual Issues Protocol.
[42] Around the same time, on October 9, 2020, Mr. Heath sued Canada for $5 million in damages for his allegedly wrongful placement in administrative segregation and for other alleged wrongdoings. Mr. Heath was an inmate at Collins Bay Prison between April 8, 2019 and October 2019. Mr. Heath’s claim was based on a three-month placement between July 8, 2019 and October 2019.
[43] Canada took the same position with respect to Mr. Heath’s action as it did with respect to Mr. Mohamud’s action. Once again, to the knowledge of Mr. Heath’s lawyers, Canada’s position was incorrect. Mr. Heath was first placed in administrative segregation in July 2019, which is long after the opt-out deadline of September 19, 2018. Mr. Heath was not a Class Member in the Reddock action.
[44] On November 11, 2020, Part 1 of the Joint Protocol Decisions was released.[^10] In Part 1, Justice Masse and I prepared a Draft Distribution and Individual Issues Protocol, (the Draft D&II Protocol). The Draft D&II Protocol was provisional. Part 1 of our Joint Protocol Decisions included the invitation to the parties to make submissions in writing and then a final Order would be made by the courts of Ontario and Québec.
[45] For present purposes, pertinent to the matter of the Opt-Out Motion, it should be noted that the Draft D&II Protocol provided, among other things, that:
a. Class Members would get a share of the net $28 million aggregate damages award;
b. Class Members who wished additional compensation could claim capped awards pursuant to a Track 2 claim grid;
c. with counsel of their own choosing, Class Members who wished additional compensation could claim uncapped awards under Track 3 pursuant to a summary judgment procedure under Ontario’s Rules of Civil Procedure (save and except for Class Members of Gallone, whose summary judgment motion would proceed in accordance with s.600 of the Québec Code of Civil Procedure); and,
d. the Protocol had an expedited timetable and a built-in procedure for the production of documents from Canada.
[46] I foreshadow to say that these features of the Draft D&II Protocol were carried forward into the final version of the D&II Protocol.
[47] The presence of these features explains why all of the Representative Plaintiff, Canada, Mohamud, Heath, and their respective lawyers were from time to time procedurally stone-deaf or stone-blind with respect to the stay motion and with respect to the Opt-Out Motion.
a. Visualize, had Canada’s position that Mr. Mohamud and Mr. Heath could not opt out been sustained and Messrs. Mohamud’s and Mr. Heath’s respective external individual actions stayed – it would have been a partial stay. The external actions would have proceeded concurrently with Messrs. Mohamud’s and Mr. Heath’s Track 3 actions. However, the external and the Track 3 action would have been inevitably consolidated or tried together. Further, Messrs. Mohamud and Heath are incorrect in asserting that they would have lost the procedural benefit of a trial in their external individual actions if they concurrently were required to prosecute a Track 3 claim. The Track 3 summary judgment procedure is expressly governed by Ontario’s Rules of Civil Procedure and those rules require a normal trial if the case is not appropriate for a summary judgment. Thus, very little would be achieved or lost procedurally by the partial stay motion.
b. Further, had Canada’s position that Mr. Mohamud and Mr. Heath could not opt out been sustained, then in the concurrent Track 3 actions and the external individual actions, Messrs. Mohamud and Heath would have had counsel of their own choosing, plus a share of the aggregate damages award, plus an expedited procedure that included built-in document production from Canada. Moreover, although, technically speaking, Messrs. Mohamud and Heath would not be bound by the decision in the Reddock summary judgment, Canada would be bound by numerous issue estoppels and by the precedent (stare decisis) of the Brazeau and Reddock decisions.
c. Thus, Messrs. Mohamud and Heath had nothing to lose and something to gain by agreeing with Canada’s incorrect position and Canada would have achieved nothing tactically, strategically, or substantively from its partial stay motion.
[48] Returning to the narrative of the factual background, on December 21, 2021, Ms. Mirilyn R. Sharp, counsel for Mr. Mohamud, spoke to James Sayce of Class Counsel. Ms. Sharp advised that Mr. Mohamud was not a member of the Reddock class, but she said that if he were, then he was entitled to opt out. Mr. Sayce responded that Mr. Mohamud was not entitled to opt out but might participate in the individual issues trials of the Brazeau, Gallone, and Reddock protocol that was being settled. Nothing was resolved by these discussions. The parties disagreed about whether any opt-out rights were necessary. The parties disagreed about the status of Mr. Mohamud’s opt-out rights, if any.
[49] Unable to resolve that matter of Mr. Mohamud’s and Mr. Heath’s rights to opt out, the lawyers arranged a case conference for January 29, 2021. The parties respectively circulated Case Conference Memoranda or correspondence for the conference where they set out their respective positions.
[50] Class Counsel’s position for the case conference was set out in Michael Rosenberg’s letter of January 25, 2021. The Representative Plaintiff’s position was that I did not have the jurisdiction to grant leave to opt out of a judgment or to extend the time to opt out of the Reddock action. Mr. Rosenberg queried why Mr. Mohamud and Mr. Heath would opt out of a favourable judgment. Mr. Rosenberg suggested that Messrs. Mohamud and Heath should resist Canada’s stay motion rather than moving for an extension of the time to opt out.
[51] For the reasons already expressed above, Mr. Rosenberg was partially correct and partially incorrect. Whether or not Mr. Mohamud and Mr. Heath were putative Class Members could have been decided by a motions judge in their respective external class actions. However, Mr. Rosenberg was incorrect in asserting that I did not have the jurisdiction to decide whether Mr. Mohamud and Mr. Heath were putative Class Members. He was incorrect in asserting that if they were putative Class Members, that I did not have the jurisdiction to grant them a right to opt out. Opt-out rights is a matter over which I am seized - not the motions judge in the external individual action.
[52] Mr. Rosenberg was correct in querying why Mr. Mohamud and Mr. Heath would see something to gain by opting out of the Class Action. However, that was not his call to make. Mr. Rosenberg somewhat overstated the disadvantages of not participating in the D&II Protocol. While I am not to be taken as deciding the point, Canada’s liability for Charter breaches and for negligence would appear to be an issue estoppel that will not have to be litigated.
[53] Mr. Rosenberg and Mr. Sayce are also incorrect in analogizing the Opt-Out Motion to a carriage fight about who is the lawyer with carriage to pursue individual actions against Canada. Mr. Mohamud and Mr. Heath were not putative Class Members. They were not Class Members. External to the class proceedings, they had litigation autonomy to retain the lawyer of their choosing. If it were the case, which it was not, that Mr. Mohamud and Mr. Heath were Class Members then they are not obliged to retain Class Counsel for individual issues trials. The case law about not awarding costs in carriage fights is not relevant to the circumstances of the immediate case.
[54] Returning to the narrative, the case conference went ahead on January 29, 2021, at which time, it emerged that there were 515 inmates who like Mr. Mohamud and Mr. Heath had been detained in administrative segregation after the opt-out deadlines. However, because the D&II Protocol was still being settled, nothing was determined at the case conference about what to do with these inmates. At the case conference, I suggested that Canada and Class Counsel should consider including in the D&II Protocol a provision for notice and a right to opt out to new Class Members who had not had an opportunity to opt out. To foreshadow, formally bringing the 515 inmates into Brazeau, Gallone, and Reddock is what eventually occurred.
[55] Class Counsel and Canada continued working through February and into March attempting to finalize the D&II Protocol, which was proving to be a considerable challenge. For example, there was a dust up with the Class Proceedings Fund that remains unresolved to this day about its role in the D&II Protocol. In February and March 2021, however, Justice Masse and I did not allow this dust up to get in the way of settling the protocols.
[56] On March 12, 2021, Part 2 of the Joint Protocol Decisions was released.[^11] In Part 2, after Justice Masse and I had received and reviewed written submissions, we released what was to be a final decision. The decision included as a schedule the approved D&II Protocol. The D&II Protocol, however, did not yet resolve the issue of the treatment of the 515 inmates or of Mr. Mohamud and Mr. Heath, although it did appear that that problem would be dealt with when the notice plan for the D&II Protocol was finalized.
[57] On March 12, 2021, Canada delivered its Statements of Defence to Messrs. Mohamud’s and Heath’s respective external individual actions.
[58] On March 15, 2021, counsel for Messrs. Mohamud and Heath requested another case conference to set dates for the Opt-Out Motion. In response, the Representative Plaintiff said that a motion was premature and that the disputes between Canada and Messrs. Mohamud and Heath in their external individual actions should be resolved within the context of those actions. Canada’s response was that the matter of whether there should be an additional opt-out period should be addressed as a part of the court settling the notices for the D&II Protocol.
[59] In other words, Canada did not see the need for Messrs. Mohamud and Heath’s Opt-Out Motion and proposed instead that this issue could be resolved as part of the process to settle the ancillary elements of the D&II Protocol. The ancillary matters included a notice and notice program to the Class Members.
[60] On March 19, 2021, Messrs. Mohamud and Heath made a without prejudice offer to settle the dispute about the opt outs. The offer was not accepted.
[61] On March 19, 2021, there was another case management conference. At that conference, I set a timetable for the delivery of the motion materials for Messrs. Mohamud and Heath’s Opt-Out Motion, and I scheduled a case conference for May 28, 2021 to complete the timetable and to set the precise date for the motion.
[62] Concurrently, after the release of the Part 2 Joint Protocol Decision, the parties set about settling the terms of the courts’ formal orders and as a part of that effort, the parties had further consultations about the protocol, including discussions with the administrator. Those further consultations resulted in consensual revisions to the D&II Protocol, which the parties asked the courts in Ontario and Québec to approve. The revisions did address the matter of inmates who like Mr. Mohamud and Mr. Heath were detained in administrative segregation after the opt-out deadlines.
[63] On April 12, 2021, Mr. Mohamud and Mr. Heath served their material for an Order extending the time for them to opt out of the class proceeding if it were determined that they were Class Members notwithstanding that they were not placed into administrative segregation until after the June 21, 2018 Certification Order and the September 19, 2018 deadline for opt outs.
[64] On May 3, 2021, the Class Counsel wrote to Messrs. Mohamud’s and Heath’s counsel to propose an adjournment of the Opt-Out Motion because it was premature having regard to the parties’ efforts to settle the form of notice to the Class of the D&II Protocol. Counsel for Canada wrote to Messrs. Mohamud’s and Heath’s counsel that the discussions between the parties were ongoing and they may ultimately consent to an opt out for inmates like Mr. Mohamud and Mr. Heath.
[65] On May 4, 2021 and May 5, 2021, by emails, Canada advised counsel for Messrs. Mohamud and Heath that they would be able to opt out of the Reddock action. On May 27, 2021, Canada and Class Counsel advised Mr. Mohamud and Mr. Heath that they had proposed revisions to the Distribution and Individual Issues Protocol that would provide class members such as Messrs. Mohamud and Heath the right to opt out of the class action.
[66] The result was that Messrs. Mohamud and Heath and other similarly situated inmates would become putative Class Members with a right to opt out. This outcome left the matter of the costs of the Opt-Out Motion outstanding. Counsel for Messrs. Heath and Mohamud sent an offer to settle this matter, but the offer was rejected, setting up the need for the present motion to determine Mr. Mohamud’s and Mr. Heath’s entitlement to cost for the unargued and moot Opt-Out Motion.
[67] To complete the narrative of the factual background and the discussion about class membership and opt-out rights, on June 14, 2021, Part 3 of the Joint Protocol Decisions was released.[^12] In Part 3, with some revisions made by Justice Masse and me, we approved the revised D&II Protocol. For present purposes, what is particularly pertinent is the discussion in paragraphs 10-28 of Justice Masse’s and my Joint Protocol Decision about the matter of the opt-out rights of inmates like Mr. Mohamud and Mr. Heath. We stated:
B. Certification and the Right to Opt Out
We shall now explain why we have revised the documents set out below with respect to increasing the class size.
It would appear that the Crown and the Class Counsel in Brazeau, Reddock, and Gallone wish to increase the size of the classes in the three actions. For Class Counsel, the apparent motivation for the change in class size is to provide access to justice to all inmates who have suffered a Charter breach because of their confinement in administrative segregation.
For the Crown, the motivation for an increase in Class size would be that only genuine Class Members are bound by the judgment that contains a discharge or a release of all liability beyond that established by the judgment or settlement.
The Crown’s conduct is typical of Defendants who seek to minimize class size at certification but later seek to increase class size for the purposes of increasing the availability of the releases or the discharges of liability that are consequent upon a settlement or a judgment.
With the aspirations of both parties to increase class size, there is now a question of how for this to be achieved.
In so far as class membership is concerned, Ontario and Québec operate on an opt out regime. In other words, persons who are defined to be putative Class Members automatically become Class Members unless they exercise a right to opt out.
If a putative Class Member opts out, then he or she is not bound by the judgment or the settlement and is free to exercise their litigation autonomy to sue the defendant if they are inclined to do so and assuming their individual claims are not statute-barred. If a putative Class Member opts out limitation periods resume running and may bar the individual action.
With respect to opt out rights, it should be noted that typically a putative Class Member is provided with an opportunity to opt out after certification, which is typically before there is a judgment or settlement of the case. At that juncture of the proceedings, if the putative Class Member does not opt out, then he or she is taken to be committed to the outcome of the class proceeding, win, lose, settlement, or discontinuance.
For present purposes, it should also be noted again that, as frequently occurs in class actions, where there is a post-certification settlement or judgement, the Crown, who before certification, labored mightily to minimize class size, now wishes to have the class definition enlarged. Typically, this requires an amendment to the class definition at least with respect to the class period.
When a class definition is amended for settlement purposes, the court will provide the new putative Class Members with a right to opt out. At this juncture being post settlement, of course, the decision of the new putative Class Members to opt out will be guided by knowing more precisely the risk of participating or not participating in the class proceedings.
For present purposes, it should be emphasized that under an opt out regime, typically a person is given an opportunity to opt out by receiving notice of the certification of the action or by receiving notice of the certification of the action for settlement purposes. These notices of certification will explain that the putative Class Member need do nothing if he or she wishes to participate in – and be bound by – the class proceeding and they will specify what the putative Class Member must do if he or she does not wish to participate in or be bound by the class proceeding.
These background observations bring the discussion back to the immediate case where (a) putative Brazeau Class Members detained in administration after December 12, 2016, (b) putative Gallone Class Members detained in administrative segregation after April 17, 2016, and (c) putative Reddock Class Members detained in administrative segregation after July 4, 2018 have not received notice of the class proceedings in which they could be putative Class Members. It is these putative Class Members that both the Crown and Class Counsel wish to bring into the distribution and individual issues protocol.
For pragmatic reasons apparently associated with the difficulties of satisfying all of the elements of the Brazeau definition for class membership, the parties have agreed to an opt out procedure for Class Members in any of the three class actions that were first detained in administrative segregation after July 4, 2018. These persons will be given an opportunity to opt out.
However, the pragmatic reasons advanced by the parties are incorrect, and the proper approach is to give a renewed right to opt out to all inmates who were detained in administrative segregation after December 12, 2016 who have not previously had an opportunity to opt out.
The fallacy in the pragmatic reasoning of the parties is that a putative Class Member does not have to establish if he or she is a putative class member to opt out. Rather, a putative Class Member is simply given notice and if the Class Member does not opt out, then he or she is treated as a class member until his or her eligibility for membership is challenged. Eligibility to participate in a settlement or to be bound by a judgement is determined later when the Class Member opts-in to participate in the settlement or to participate in the judgment (the Distribution and Individual Issues Protocol), as is the situation in the immediate case.
Thus, in the circumstances of the immediate cases of Brazeau, Gallone, and Reddock, the proper approach to increasing the class size is to give the putative Class Members who were detained in administrative segregation after December 12, 2016 and who have not previously had an opportunity to opt out a first-time opportunity to opt out.
In the immediate case, it is extremely unlikely that new putative Class Members will opt out, because the usual reason to opt out is that they wish to bring an individual action represented by the lawyers of their own choosing, but that is a right that is available to them under the Distribution and Individual Issues protocol with the added benefit that they would get a share of the distribution of the aggregate damages award that has already been awarded.
It should be noted that the notice will be given to all putative Class Members who were detained after December 12, 2016 but only those who have not already had an opportunity to opt out will have a right to opt out.
It is for the above reasons that we have modified the following documents that we hereby approve.
[68] On July 15, 2021, Justice Masse and I released Part 4 of the Joint Protocol Decisions, which corrected some typographical errors in the protocol. Part 4 approved the ancillary documents.[^13]
C. Do Mr. Mohamud and Mr. Heath Have an Entitlement to Costs for the Opt-Out Motion?
[69] I begin the discussion about whether Mr. Mohamud and/or Mr. Heath have an entitlement to costs for the Opt-Out Motion with two general observations.
[70] The first general observation is that the Brazeau, Gallone, and Reddock class actions are extraordinarily extraordinary, and it is therefore not surprising that procedural misunderstanding might and did arise.
[71] The second general observation is that there is no dispute that I have the jurisdiction and the discretion to make a costs order notwithstanding that the Opt-Out Motion has become moot.
[72] I begin the discussion of how I should exercise my discretion with respect to costs by observing that there is a strong case to be made that the appropriate order is to make no order as to costs.
[73] I think it is fair to say that while there never was a genuine need for Mr. Mohamud and Mr. Heath to bring their Opt-Out Motion because they were already outside of the Brazeau, Gallone, and Reddock actions and their lawyers knew that to be the case, nevertheless, it is also fair to say that Mr. Mohamud and Mr. Heath were lured or misled by Canada and to a certain extent by Class Counsel into thinking that they did need permission to opt out. Viewed in this way, Mr. Mohamud and Mr. Heath’s success was very much a pyrrhic victory and Canada’s and Class Counsel’s including an opt-out right in the D&II Protocol a pyrrhic defeat.
[74] That said, there is also a reasonably strong case that the costs of the Opt-Out Motion should be costs in the cause of the external individual actions of Mr. Mohamud and Mr. Heath, which is the action that is proceeding against Canada.
[75] In my opinion, in the byzantine circumstances of the Brazeau, Gallone, and Reddock actions, the case is weak for making a costs award against the Representative Plaintiff. Mr. Mohamud’s and Mr. Heath’s lawyers were correct at the outset that Mr. Mohamud and Mr. Heath were not Class Members of the Reddock action. Consistent with that correct analysis, Mr. Mohamud’s and Mr. Heath’s lawyers should not and need not have sought Class Counsel’s involvement. In a sense Class Counsel in Reddock were invited to the fray of the external individual issues actions. Their response to taking a position about opt-out rights in Brazeau, Gallone, and Reddock was legally incorrect but well-intentioned. Further, I generally agree with Mr. Rosenberg’s sentiment, noted above, that the significance of the Reddock action on the external individual actions is a matter to be resolved in those actions.
[76] While it was legally incorrect to think that the 515 inmates and Messrs. Mohamud and Heath were Class Members, it was commendable and not cynical nor sinister that Class Counsel - and Canada for that matter – wished to include them in the Brazeau, Gallone, and Reddock proceedings. Messrs. Mohamud’s and Heath’s lawyers would not have been aware that a persistent theme in all of these actions, and other actions for that matter, is that Canada, despite its professed efforts to stop unconstitutional solitary confinement, was falling short. By including the 515 inmates in Brazeau, Gallone, and Reddock, Canada was admitting the Charter breaches and making amends.
[77] There never was a need for a dispute between Messrs. Mohamud and Heath with the Representative Plaintiff. In the future, there will be no dispute amongst Messrs. Mohamud and Heath, their lawyers, the Representative Plaintiff, and Class Counsel. Although the Opt-Out Motion is moot, Messrs. Mohamud and Heath will have achieved their objective of proceeding only in an external action against Canada since they intend to opt out once notice is given of the D&II Protocol. As I explained above, the dispute to maintain the solidarity and separation of that external individual action from Reddock could and in my view should have been resolved in the external actions.
[78] In all these circumstances of a procedural tempest in a teapot, or as Cicero would have it, a tempest in a ladle, in my opinion, the appropriate award is to order the costs of the Opt-Out Motion and the costs of the immediate motion to be costs in the cause of Messrs. Mohamud’s and Heath’s external individual actions against Canada.
[79] Order accordingly.
Perell, J.
Released: September 9, 2021
[^1]: S.O. 1992, c. 6. [^2]: CQLR, c. C-25.01. [^3]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^4]: Brazeau v. Attorney General (Canada), 2016 ONSC 7836. [^5]: Reddock v. Canada (Attorney General), 2018 ONSC 3914. [^6]: Brazeau v. Attorney General (Canada), 2019 ONSC 1888. [^7]: Reddock v. Canada (Attorney General) 2019 ONSC 5053. [^8]: 2020 ONCA 184. [^9]: Brazeau v. Canada (Attorney General), 2020 ONSC 3272. [^10]: Brazeau v. Canada (Attorney General), 2020 ONSC 7229; Reddock v. Canada (Attorney General), 2020 ONSC 7232. [^11]: Brazeau v. Canada (Attorney General), 2021 ONSC 1828. [^12]: Brazeau v. Canada (Attorney General), 2021 ONSC 4294. [^13]: Brazeau v. Canada (Attorney General), 2021 ONSC 4982.