CCLA Intervenes in Decisive Appeal about the Accessibility of Class Action Lawsuits for Vulnerable Communities

Class action lawsuits are a crucial tool for vulnerable communities seeking redress for systemic misconduct and Charter violations. The CCLA is intervening before the Ontario Court of Appeal in G.G. v Ontario, to urge the court to reconsider a common law procedural rule, known as the Ragoonanan principle, which has become a major barrier for class action lawsuits that involve more than one defendant.

In cases where prospective plaintiffs wish to launch a class action against more than one defendant, the Ragoonanan principle requires that at least one plaintiff has a personal claim against every named defendant; otherwise, a court cannot allow a proposed class action lawsuit to proceed. For example, in G.G., two plaintiffs sought to initiate a class action lawsuit against the Ontario government and all Ontario children’s aid societies (“CASs”) for implementing a “Birth Alerts” policy that disproportionately affected racialized and marginalized parents. However, because the plaintiffs only have claims against two of the 49 CASs, the application judge found that they could not launch a class action against the remaining 47. The result is that these entities could escape accountability, despite having enforced the same discriminatory top-down policy from which the plaintiffs are seeking redress.

The Ragoonanan principle was initially intended to protect innocent defendants from being burdened by speculative class action lawsuits, but it overshoots this purpose. By requiring a representative plaintiff to have a personal cause of action against each named defendant, even when the defendant is implicated in systemic practices that place vulnerable groups at risk of harm, the Ragoonanan principle can insulate those responsible for the creation and operation of discriminatory and harmful systems from accountability. As a result, the Ragoonanan principle has the capacity to perpetuate the very power imbalance and impunity that give rise to class actions against powerful defendants, including the state and entities that perform governmental functions.

The CCLA will argue that there is no principled basis to uphold the Ragoonanan principle today: the existing certification test weeds out speculative claims, and Ontario’s “loser pays” costs regime disincentivizes the pursuit of unmeritorious class proceedings.

Click here to read CCLA’s factum.

The CCLA is immensely grateful for the outstanding pro bono legal services of Golnaz Nayerahmadi and Jessica Marshall of Rochon Genova LLP.