Case information

Civil procedure – Class actions – Certification – Common issues – Preferable procedure – Case management judge certifying a class action covering a period from June 30, 1985 to September 30, 2009 – Court of Appeal allowing the appeal in part to certify the class action for only the period from February 21, 2002 to November 1, 2004 as raising common issues and being the preferable procedure – What role should a defence to an action play in the certification stage? –Where there is tension between the goals of class action proceedings should the tension be resolved in favour of access to justice? – Did the Court of Appeal misapply the fundamental principles of access to justice and judicial economy in the certification application by failing to consider the practical consequences of excluding the 1985 to 2002 and the 2004 to 2009 class members from the certified class definition? – Class Proceedings Act, SA 2003, c. C16.5, s. 5 – Child Welfare Act, SA 1984, c. C-8.1, s. 29 – Child Welfare Amendment Act, 2002 (No. 2), SA 2002, c. 10 – Child Youth and Family Enhancement Act, SA 2008, c. C-31, s. 21.1

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EMP is the representative plaintiff of the child class and LC is the representative plaintiff of the relative class in an action that was certified as a class proceeding by the Court of Queen’s Bench.
The action alleges various causes of action based on the failure of successive Directors of Child Welfare to comply with the requirements of the Child Welfare Act and the Child Youth and Family Enhancement Act concerning the preparation and/or filing of service plans (also known as care plans) or concurrent plans for apprehended children who were the subject of temporary guardianship orders. The case management judge certified the action as a class proceeding, contingent on proper amendment being made to the statement of claim. The judge found that there were common issues relating to the child class and relative class throughout a period from 1985 – 2009 and that a class proceeding was the preferable procedure for the fair and efficient resolution of the common issues. The defendants appealed the certification decision. The Court of Appeal allowed the appeal in part, holding that only the period between February 21, 2002 and November 1, 2004 raised common issues for which a class action would be the preferable procedure.

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