Ontario Civil


Not clear from judge’s reasoning whether he considered creating subclass

Plaintiffs were charitable or religious organizations who were seeking restitution of lottery licensing and administration fees paid by them to the municipalities after January 1, 1990, alleging that fees were illegal and unconstitutional taxes. Plaintiffs sought order certifying actions as class proceedings. Judge certified only claims he found were not prima facie time-barred. Divisional Court allowed plaintiffs’ appeal finding that judge erred in law when he refused to certify portion of claims that were prima facie time-barred. Divisional Court referred matter back to judge for reconsideration. Judge certified all claims going back to January 1, 1990, including prima facie time-barred claims. Municipalities sought leave to appeal judge’s decision. Leave to appeal granted. When matter was referred to judge to reconsider certification in accordance with s. 5(1)(b), (d) and (e) of Class Proceedings Act, 1992 (Ont.), he was required to conduct analysis set out in case law. In order to determine whether class proceeding was preferable procedure judge was required to consider whether, given all circumstances of particular claim, it would be preferable to other methods of resolving claim and that it would be preferable to use of individual proceedings. Analysis required judge to compare advantages and disadvantages of proceeding with all plaintiffs by way of class proceeding and consider advantages and disadvantages with respect to goals of class proceedings. Judge did not conduct proper analysis. Judge did not provide analysis of whether prima facie time-barred claims actually formed subclass that were specifically contemplated in s. 5(2) of Act. It was not clear from judge’s reasoning whether he considered appropriateness of creating subclass. There were reasons to doubt correctness of judge’s order. Development of law with respect to class actions had implications that were broader than this case.

Amyotrophic Lateral Sclerosis Society of Essex (County) v. Windsor (City) (Oct. 30, 2013, Ont. S.C.J., Mary Jo M. Nolan J., File No. DC-13-52-ML, DC-13-53-ML) Leave to appeal from 224 A.C.W.S. (3d) 265 was allowed.  236 A.C.W.S. (3d) 827.

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