Certification order is procedural, does not decide merits: Ontario Court of Appeal
The Ontario Court of Appeal recently said that it lacked the jurisdiction to hear an appeal from a certification decision since it was a procedural order describing the constitution of the class for the purposes of a certified class proceeding.
The plaintiffs filed a motion under s. 2(1) of Ontario’s Class Proceedings Act, 1992 (CPA). The motion sought an order under s. 5 of the CPA to certify a class proceeding alleging a widespread price-fixing conspiracy by various producers and retailers of manufactured packaged bread.
Justice Edward Morgan of the Ontario Superior Court of Justice certified the proceeding against most of the named defendants. He identified common issues relating to the plaintiff’s various claims and defined the class as all non-excluded Canadian residents who directly or indirectly bought packaged bread from a defendant retailer within the class period.
The plaintiffs wanted to appeal the motion judge’s definition of the class for the class action’s purposes. The proposed appeal argued that the class definition was inconsistent with the judge’s earlier reasons and was legally wrong, given the plaintiffs’ evidence.
The moving parties, who were some of the defendants in the underlying action, moved to quash the plaintiffs’ appeal of the certification order. They contended that the appellate court lacked the jurisdiction to hear the appeal.
In David v. Loblaw Companies Limited, 2022 ONCA 833, the Ontario Court of Appeal quashed the appeal.
First, the appellate court ruled that the CPA’s appeal provisions governed. The certification order was not a final order since it did not expressly or impliedly decide the claims’ ultimate merits, the court said.
The motion judge never suggested that he was dismissing any part of the potential plaintiffs’ claims, the Court of Appeal noted. Instead, he defined the class to reflect his understanding of the nature and scope of the plaintiffs’ allegations, the court said.
Counsel for Canada Bread Company, Limited, one of the defendants, stated that the company was not arguing that res judicata or abuse of process should bar anyone excluded from the defined class from raising their claims in a proceeding that described the conspiracy’s nature and scope as including the excluded persons.
Second, the Court of Appeal held that the appeal provisions as they existed before the CPA’s 2020 amendments, including the former s. 30(2) of the CPA, were applicable to the appeal.
The transitional provision in s. 39(1) clearly showed that the Legislature drew a line between class proceedings brought before the effectivity of the 2020 amendments and proceedings initiated after that date, the appellate court said. The language in s. 39(1) did not suggest that the section was inapplicable to the CPA’s provisions governing rights of appeal, the court added.
Thus, an appeal from the certification order lay to the Divisional Court with leave from a Superior Court judge, the Court of Appeal concluded.
