Susan Gans

This decision, Part 9 of a series in a multi-jurisdictional class action, addresses bitterly contested motions by both the Attorney General of Canada and Class Counsel to revise the Distribution and Individual Issues Protocol (DIIP).

The dispute centered on the scope of reply position statements for Track 2 claims.

Canada sought to limit replies strictly to mitigating factors and causation rebuttal, while Class Counsel argued for broader replies to new issues raised by Canada.

The court denied both parties' specific requests, instead directing a revision to allow Canada a right of sur-reply if a claimant files a reply, and imposing an increased payment to the Manager/Expert in such instances.

The ruling aims to ensure fair, efficient, and proportionate litigation while discouraging procedural abuses by either party.

This is Part 10 of a series of joint decisions in multi-jurisdictional class actions (Ontario and Quebec).

Class Counsel sought further revisions to the Distribution and Individual Issues Protocol (DIIP), specifically to increase the $6,000 costs cap for Track 2 claims to $12,000, and to add a clause about Rule 49 of the Rules of Civil Procedure applying to Track 2/3 claims, and to apply ordinary costs rules for contested Track 2 motions.

The court approved the latter two unopposed requests but denied the request to increase the costs cap, emphasizing proportionality and the need to simplify procedures rather than increase costs.

In a consolidated class action, Class Counsel sought partial indemnity costs for their work on a Distribution and Individual Issues Protocol (DIIP).

The court dismissed the motion, finding that the costs for DIIP development had been prepaid as part of prior counsel fee approvals.

The decision emphasized that DIIP creation is a necessary and collaborative aspect of class proceedings, not an event warranting additional 'success' costs, and clarified that prior judicial statements about future payments referred to costs already accounted for.

The applicant, a self-represented prisoner and class member in a class action regarding administrative segregation, brought a motion seeking to challenge and amend the court-approved Distribution and Individual Issues Protocol.

The court dismissed the motion, finding that the applicant lacked standing to seek amendments as he had not opted out of the class action and was bound by the outcomes negotiated by representative plaintiffs.

Furthermore, the court noted that the applicant's recent placement in administrative segregation occurred after the class period had closed, placing it outside the scope of the class action, and that his criticisms of the protocol were based on a misunderstanding of its revisions.

The Ontario Superior Court of Justice and the Superior Court of Québec issued a joint decision in three related class actions against the Attorney General of Canada.

Following the approval of a Distribution and Individual Issues Protocol, the parties sought approval for minor typographical corrections and various translated administrative documents, including notice forms and claim forms.

The courts approved the corrections and the submitted documents, and directed the parties to submit the claims administrator's terms of appointment once finalized.

The parties in three related class actions regarding administrative segregation in federal penitentiaries sought court approval for a revised Distribution and Individual Issues Protocol, notices, and forms.

The courts approved the documents but revised the proposed opt-out procedure to ensure that all putative class members detained in administrative segregation after December 12, 2016, who had not previously had an opportunity to opt out, were granted a first-time opportunity to do so.

This is Part 2 of a joint decision by the Ontario Superior Court of Justice and the Superior Court of Québec concerning the Brazeau, Reddock, and Gallone class actions.

The courts finalized and approved the Distribution and Individual Issues Protocol, which governs the distribution of the aggregate damages award and the procedures for determining individual issues.

The decision addresses submissions from the parties on a provisional draft protocol and resolves a late-arriving dispute between Class Counsel and the Law Foundation of Ontario regarding funding for the individual issues phase by deleting contentious provisions.

The court redetermined Charter damages in a class action concerning administrative segregation in federal penitentiaries, following an appeal that set aside the initial damages award.

The Court of Appeal affirmed liability but remitted the damages issue for redetermination on proper principles.

The court awarded $20 million for vindication, deterrence, compensation, and pre-judgment interest, to be distributed directly to class members.

For the purposes of individual issues trials, the per capita award is to be deemed compensatory damages.

This decision rejected Canada's submission for a $2.4 million award and the plaintiffs' alternative submission for $20 million solely for vindication and deterrence.

Following a successful summary judgment motion in a class action regarding administrative segregation in federal penitentiaries, the representative plaintiff sought partial indemnity costs of $1,235,590.33.

The defendant argued the costs were excessive and duplicative of work done in a concurrent class action involving mentally ill inmates.

The court rejected the defendant's argument that the work was largely duplicative, noting the cases were distinct and the defendant had tenaciously defended both.

The court made a modest reduction of $113,000 for some overlapping settlement discussions and awarded the plaintiff $1,122,590.33 in costs.

The plaintiff brought a summary judgment motion in a class action against the Federal Government regarding the use of prolonged administrative segregation in federal penitentiaries.

The court found that the Federal Government breached the class members' rights under sections 7 and 12 of the Charter by placing them in administrative segregation for more than 15 days, and that these breaches were not saved by section 1.

The court also found the Federal Government liable for systemic negligence.

The court awarded $20 million in aggregate Charter damages for vindication, deterrence, and compensation, to be distributed equally among the class members, while dismissing the claim for class-wide punitive damages.

In a certified class action, the Attorney General of Canada moved for an order adjourning a summary judgment motion sine die, pending the outcome of appeals in two related cases concerning administrative segregation.

Canada argued that an adjournment would prevent duplication of resources, inconsistencies in law, and allow for streamlining of issues, consistent with the Courts of Justice Act.

The plaintiff opposed the adjournment, citing substantial prejudice due to delay after two years of litigation.

The court refused the adjournment, finding that proceeding with the summary judgment motion was more efficient and fair, as the evidentiary record was complete, and the case should be decided based on existing law.

The court emphasized that an adjournment would waste prior work and add to costs, and that justice delayed is justice denied.

The appellant, Niagara College of Applied Arts and Technology, appealed an order of the Superior Court of Justice striking its claim in negligence for pure economic loss against the respondent, The Attorney General of Canada.

The Court of Appeal affirmed the motion judge's finding that Niagara College did not have a proximate relationship with Immigration Canada, and upheld the decision to strike the negligence claim without leave to amend.

The appeal was dismissed with costs awarded to the respondent.

The defendant, the Attorney General of Canada, brought a motion to strike portions of the plaintiff's statement of claim.

The plaintiff sued for torts and Charter breaches arising from his seven-year immigration detention.

The court struck the claims against the Adjudicators of the Immigration Division, finding they were barred by statutory and common law immunity.

However, the court declined to strike the claims of malicious prosecution against the CBSA for the plaintiff's detention in Canada, the claim for intentional infliction of emotional harm, and the section 15 Charter claim, finding it was not plain and obvious that these novel claims would fail.

The appellant sought habeas corpus relief and Charter remedies regarding his immigration detention.

The application judge dismissed the habeas corpus application but granted section 24(1) relief for a section 12 Charter breach, ordering the appellant's transfer from a maximum security provincial facility to an immigration detention centre.

On appeal, the Court of Appeal dismissed the appellant's appeal and allowed the respondent's cross-appeal, finding that the appellant failed to establish a section 12 breach and that the application judge erred in his analysis of the legal test and evidentiary foundation required for such a claim.