Federal Appeal

Civil Procedure

Judge erred by not including certain claims as part of class proceeding

Plaintiffs were individuals who applied for and received student loans through Canada Student Loans Programs from 2002 to 2006. Personal information of individuals was stored on hard drive that had been kept in filing cabinet at offices of Human Resources and Skills Development Canada. Hard drive was lost. Plaintiffs commenced action against defendant on various grounds and brought motion to certify action as class proceeding. Federal Court judge granted motion but only in relation to certain claims. Federal Court judge did not include claims of negligence and breach of confidence as part of class proceeding. Plaintiffs appealed. Appeal allowed. Federal Court judge evaluated affidavit evidence in concluding that plaintiffs had not suffered any compensable damages. However, determination of whether plaintiffs had reasonable cause of action in negligence or breach of confidence should have been made based on facts as pled and not on evidence adduced in support of motion. Federal Court judge erred in law in evaluating merits of claims of negligence and breach of confidence based on evidence submitted by parties and in failing to address claims for special damages for costs incurred in preventing identity theft and out-of-pocket expenses in analysis. Plaintiffs claimed they suffered damages and they identified nature of damages they were claiming. There was no basis to not include claims of negligence and breach of confidence as part of class proceeding.

Condon v. R. (Jul. 6, 2015, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-165-14) Decision at 239 A.C.W.S. (3d) 28 was reversed.  255 A.C.W.S. (3d) 836.

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