EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports.
Practice
Class Proceedings
Related Subject: Family Law
Motion for order restoring Family Class to class definition of underlying proceeding — Family Class inadvertently left out of class definition when revised certification order issued — Original certified class definition including all individuals entitled to assert claim pursuant to Family Law Act, R.S.O. 1990, c. F.3 — Defendant opposing motion — Whether Family Class should be added to class definition — Federal Courts Rules, SOR/98-106, r. 334.19 providing Court with jurisdiction to amend order certifying proceeding as class proceeding — Defendant arguing that because Federal Court of Appeal, in 2021 FCA 186, considered appeal of amended certification order (i.e. order from which Family Class inadvertently left out), plaintiffs now estopped from re-litigating class definition — That argument rejected — Motions at class certification stage procedural motions, do not include decisions on merits — Therefore, no judicial findings yet made on merits of plaintiffs’ claims in class proceeding — Also, Family Class not judicially determined in revised order — Court also not functus officio as no final finding made on merits of case — Further, SCC recognizing exceptions to doctrine of functus officio where slip-up or error occurring in expressing court’s manifested intention or statutory power to revisit order — In alternative, defendant arguing there was, at time of certification of proceeding, there continues to be, lack of evidence supporting finding there was some basis in fact to certify Family Class — Certification decision already finding “identifiable class” requirement of certification criteria met by establishing “some basis in fact” — Federal Court of Appeal not overturning this finding — There being no change in circumstances since certification decision issued, no need to revisit matter — As to defendant’s final argument, i.e. that Family Class definition unworkable, that argument inaccurate — Family Class is derivative class, meaning any claims therefrom arising through primary class member otherwise capable of making claim themselves — Family Class thus identifiable class — Motion granted.
Greenwood v. Canada (T-1201-18, 2023 FC 397, McDonald J., reasons for order dated March 22, 2023, 11 pp.)