Federal Appeal

Civil Practice and Procedure

Class and representative proceedings
Common question in original order was restored

Plaintiff brought motion to certify as class proceeding action relating to denial of sickness benefits under Employment Insurance Act to individuals who were receiving parental benefits under Act when they became ill. Judge certified class proceeding for negligent implementation of Act in original order. Attorney General of Canada and Canada Employment Insurance Commission brought motion for reconsideration of original order. Motion was granted and amendments were made in amending order. Plaintiff appealed amendment in amending order that deleted common question that asked whether defendants who owed duty breached that duty of care. Appeal allowed. Common question in original order was restored. Certification judge certified question of whether Commission or Service Canada owed duty of care in administering Act and if so, content of duty and which defendant owed duty despite her statement that it would require individual assessment to determine who owed duty. It could not be said that manifest intention of certification judge was not to certify subject question related to whether Commission or Service Canada, who would have been found to have owed duty as result of earlier common questions, breached that duty. This common question was conditional, directly and indirectly, on other questions that had been certified. It was not clerical error or mistake to include this common question in original order.

McCrea v. Canada (Attorney General) (2016), 2016 CarswellNat 5814, 2016 FCA 285, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.).

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