In a recent decision, Knisley v. Canada, 2024 ONCA 185, the Ontario Court of Appeal shut the door on the concept of “conditional” class action certification.
The Court of Appeal rejected the lower court’s decision that a class action could be “conditionally” certified based on a class definition to be amended after the certification decision “to the satisfaction of the parties and the court.”
The Court of Appeal held there is no foundation in the Class Proceedings Act, 1992, SO 1992, c. 6 for a conditional certification, nor is there support for it in the jurisprudence. In addition to the procedural hurdles created by such an approach, the court explained that a court deciding certification would not be able to properly determine the common issues and preferable procedure requirements without first understanding the scope of the proposed class.
Superior Court Grants “Conditional” Certification
A veteran of the Canadian Armed Forces sought certification of a proposed class action on behalf of himself and other veterans who are alleged to have suffered physical and mental harm from Veterans Affairs Canada’s failure to provide proper administration and timely payment of disability pensions and benefits.
The Superior Court held that the class definition did not meet the mandatory requirement for certification in the Class Proceedings Act, 1992, SO 1992, c 6 that there be an identifiable class (s. 5(1)(b)). Nevertheless, having held that the remaining elements for certification were met, the Superior Court determined that the class action could be certified “on condition that the class definition be amended.” It said that the amendment would have to be “to the satisfaction of the parties and the court.”
Court of Appeal Says There Is No Such a Thing as “Conditional” Certification
The appeal was allowed, in part. The Court of Appeal held that the proposed class action could not be certified in the absence of an identifiable class. The certification order was set aside and remitted to the Superior Court for reconsideration.
The Court of Appeal rejected the possibility that a class action could be “conditionally” certified. It reached this conclusion based on jurisprudential, statutory, and procedural reasons.
To find that it could grant “conditional” certification, the Superior Court relied on a Supreme Court of Canada decision, Hollick v. Toronto (City), 2001 SCC 68, holding that: “Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended.” However, the Court of Appeal found that Hollick does not permit “conditional” certification; rather it is authority for the proposition that where the proposed class definition is unacceptable, a court can dismiss the certification motion or amend the class definition itself to make it acceptable. In other words, a court cannot certify a proceeding without an identifiable class.
The Court of Appeal also held that all the requirements in s. 5(1) of the Class Proceedings Act, 1992 must be met for a proposed class action to be certified. There is nothing in the statute that would allow a plaintiff to partially meet the requirements.
Procedurally, the Court of Appeal also found that “conditional” certification was not workable because there would be no clarity on what the status of the certification would be if the parties and court were not satisfied by an amended class definition. The Court of Appeal also highlighted the practical problem with the Superior Court’s reasoning and its direct impact on the other requirements for certification, finding that: “It is difficult to see how a proper determination could be made regarding the existence of common issues and preferability of the class proceeding without knowing who comprises the class.”
Key Takeaways
The Court of Appeal’s decision is clear: “conditional” certification is not an available outcome on a motion for certification.
Articulating an acceptable class definition is a necessary element of the certification test. An identifiable class is also essential for determining the common issues and preferable procedure requirements for certification.
Precise identification of the class is necessary to determine whose rights will be affected by the class proceeding, if certified. The class definition has an impact on substantive rights and accordingly, as the Court of Appeal held, it is not acceptable to certify a class action without clearly defining who is in the class.
