On One Condition: Ontario Court of Appeal confirms no “conditional” certification of class proceedings

The Ontario Court of Appeal in Knisley v. Canada (Attorney General), 2025 ONCA 185, has confirmed that a class proceeding cannot be certified on a conditional basis. On a motion for certification, a motion judge must either certify an action as a class proceeding where the certification test has been met or must deny certification where the criteria for certification have not been met. No “conditional” certification, subject to amendments to satisfy the elements of the certification test, is allowable.

Background

The proposed class action related to alleged failures of Canada, through Veterans Affairs Canada (“VAC”), in the timely administration of veterans’ benefits and programs, which the proposed representative plaintiff claims has led to ongoing physical, psychological, emotional and mental harm, and other related damages.

As a result, the proposed representative plaintiff, a veteran of the Canadian Armed Forces (“CAF”) who was injured by an explosive device while on patrol when deployed in Afghanistan, sought to advance a class action on behalf of himself and other veterans who have suffered damages arising from the alleged failures of Canada, through VAC, to properly administer disability programs and make timely payment of benefits.

Superior Court of Justice Grants “Conditional” Certification

The plaintiff advanced various causes of action on behalf of the proposed class, including breach of section 7 of the Charter, breaches of fiduciary duty and contract, negligence, and negligent misrepresentation.

The motion judge found that the plaintiff’s claim for negligence disclosed a reasonable cause of action, that there were common issues, that a class proceeding was the preferable procedure, and that the proposed representative plaintiff was suitable, thereby satisfying four out of five of the certification test criteria.

However, in analyzing whether or not an identifiable class existed, the motion judge raised concerns that the class definition proposed by the plaintiff during argument at the certification motion was different than the one proposed in the plaintiff’s filed motion materials, and that the new proposed definition was nevertheless too narrow and underinclusive.

The motion judge went on to state that the Court had two options in light of the improper class definition:

1.     the Court could disallow the certification motion due to a class definition that was too narrow and underinclusive; or

2.     the Court could allow the certification on the condition that the definition be amended to properly define the class that is not too narrow nor too broad.

Ultimately, notwithstanding his concerns with the class definition, the motion judge accepted the latter option, stating: “if this court determines the class action be certified, it will be on the condition that the class definition be amended.”[1]

The motion judge concluded that based on the qualifications and findings in his reasons, “including the condition to amend the class definition”, the plaintiff’s motion for certification was granted. [2]

Court of Appeal Confirms Non-Existence of Certification on Conditional Basis

Canada appealed the certification order in part on the basis that the motion judge had certified the action “subject to the class definition being amended to the satisfaction of the parties and the court”.[3] The Court of Appeal allowed the appeal on the basis that the motion judge made a “procedural error” central to the certification process and remitted the matter for a further hearing.

In considering the motion judge’s “conditional” certification order, the Court of Appeal noted that the motion judge had not provided any direction as to how the class definition could be amended to achieve the necessary satisfaction of the parties and the court, nor did he address what might happen if the parties, or the court, could not reach that satisfaction.

Further, the Court of Appeal rebutted that the decision in Hollick v. Toronto (City), 2001 SCC 68 (“Hollick”) supported the “conditional” certification route that had been employed by the motion judge. Rather, at paragraph 21 in Hollick, McLachlin C.J. offered a view that, where a proposed class definition is not acceptable, a motion judge may dismiss the certification motion, or amend the class definition to make it acceptable, which the representative plaintiff could either accept as amended or abandon the class proceeding. The Court of Appeal identified three reasons in support of its interpretation of Hollick:

1.     no provision of the Class Proceedings Act, 1992, S.O. 1992, c.6 (“CPA”) contemplates “conditional” certification; rather, the five certification criteria are mandatory;

2.     the class definition directly impacts the certification analysis of the common issues, preferable procedure, and appropriate representative plaintiff criteria; and

3.     procedural issues would arise from “conditional” certification, including in the event no class definition is found acceptable, and the appeal route from such an order is unclear.

The Court of Appeal went on to confirm that a determination of an identifiable class – i.e., whose rights are going to be determined in the proceeding, and who has the right to opt out – is a crucial aspect of certification, and it is not acceptable to purport to certify a proceeding as a class action with that critical aspect undetermined.

Key Takeaways

The certification criteria set out in section 5(1) of the CPA are mandatory, and there is no available discretion for a motion judge to conditionally certify a class proceeding. Where a plaintiff’s proposed class definition is flawed, the motion judge may make an express amendment to the class definition to make it acceptable or may deny the motion to certify. Further, this decision emphasizes the important relationship between the class definition to the other certification criteria, namely, the existence of common issues, the preferability analysis, and the suitability of the representative plaintiff.