



COURT OF APPEAL FOR ONTARIO

CITATION: Cirillo v. Ontario, 2021 ONCA 353

DATE: 20210526

DOCKET: C68470

Rouleau, Benotto and Thorburn
    JJ.A.

BETWEEN

Robin Cirillo

Plaintiff (Appellant)

and

Her Majesty the Queen in Right
    of Ontario

Defendant (Respondent)

Kirk M. Baert, Celeste Poltak, Charles
    Hatt, Scott C. Hutchison and Lauren Mills Taylor, for the appellant

Christopher A. Wayland, Jeffrey Claydon
    and S. Zachary Green, for the respondent

Heard: February 1 and 2, 2021 by video
    conference

On appeal from the orders of Justice Edward
    M. Morgan of the Superior Court of Justice, dated May 23, 2019 and June 26,
    2020, with reasons reported at 2019 ONSC 3066 and 2020 ONSC 3983.

Benotto J.A.:

[1]

The appellant, Robin Cirillo, sought to certify
    a class proceeding claiming redress for the Crowns failure to hold timely bail
    hearings for accused persons. She based her claims as a representative
    plaintiff on negligence, breach of fiduciary duty and rights under the
Charter
    of Rights and Freedoms
. The motion judge dismissed the motion for certification.
    She appeals the order to this Court. She also appeals a second order dealing
    with the application of the
Crown Liability and Proceedings Act, 2019
,
    S.O. 2019, c. 7, Sched. 17

(
CLPA
).

[2]

I would dismiss the appeal. The proposed class action
    does not meet the requirements of the
Class Proceedings Act, 1992
,
S.O. 1992, c. 6 (
CPA
)
. There is no cause of action in negligence,
    as the claim attacks core policy decisions insulated from tort liability. The
    appellant did not raise the fiduciary duty issue in written or oral argument. The
Charter
claims arise from a purported right to a bail hearing within
    24 hours of arrest. Whether or not this right exists, the proposed class
    definition is flawed, there are no common issues, and a class action is not the
    preferable procedure. It is unnecessary to determine whether certification of the
    negligence claims would also be barred by s.11 of the
CLPA
.

I.

FACTS

(1)

Background

[3]

The appellant was arrested on the evening of May
    28, 2017 following an altercation with her ex-spouse during which she allegedly
    brandished a butter knife. No one was injured.

[4]

The appellant was detained in a holding cell at
    the police station until the next morning when she was taken to the courthouse.
    She says she arrived at approximately 12:30 p.m. She was expecting to be
    released on consent. At 2:47 p.m., when the matter was placed on the court
    docket, duty counsel advised the court that the appellants matter could not
    proceed because sureties were being interviewed. The justice of the peace then
    began a contested bail hearing in another matter.

[5]

The contested bail hearing was interrupted at
    3:25 p.m. by two offers from other courts to traverse matters. There was no
    indication that duty counsel was ready to proceed with the appellants hearing.
    Nor was there a request to have her matter traversed.

[6]

The justice of the peace called the matter at around
    5:24 p.m. Duty counsel advised the court that this was to be a consent release.
    She argued that the court was without jurisdiction to adjourn the matter, since
    neither counsel requested an adjournment, and that a lack of judicial resources
    should not be a reason for an adjournment. Duty counsel conceded that this was
    the earliest the matter could proceed. The justice of the peace rejected duty counsels
    submissions and adjourned court for the day, noting that there had been ample
    time for the hearing and that the court was simply out of time for the day.

[7]

The appellant was transported to detention and
    returned to the court the next day. She was released on consent with multiple
    conditions and surety bail.

(2)

The proposed class action

[8]

The appellant commenced this action on behalf of
    herself and the following persons:

[A]ll  persons who were arrested and detained
    for a period of more than 24 hours prior to any Bail Hearing being available as
    a result of:

(a) the matter not being reached;

(b) transportation, or lack thereof, from
    detention to bail hearing;

(c) interpretive services not present at the
    bail hearing;

(d) the accused not having the opportunity to
    speak with counsel prior to arriving at the bail hearing; or

(f) the Crown not being willing to proceed
    with a hearing;

for the time
    period of January 1, 2000 to the present, but excluding individuals charged
    with an offence mentioned in s. 469 of the
Criminal Code
.

[9]

The appellant challenges what she describes as the
    Crowns operational failure in carrying out its constitutional and statutory
    duty to ensure a bail hearing within 24 hours, as required by the
Criminal
    Code
and the
Charter
.
    She says that the respondent has mismanaged the bail system, failed to provide
    the system with adequate resources, and has promulgated policies for Crown
    prosecutors that have had the effect of increasing the number of people in
    remand. She claims that the Crowns actions constitute systemic negligence
    against the putative class members. In addition, she argues that the actions of
    the respondent violated the putative class members ss. 7, 9, 11(d), 11(e), and
    12
Charter
rights.

[10]

The appellant seeks declaratory relief,
    including declaratory relief for negligence and breach of
Charter
rights. For instance, she seeks a declaration that the respondent is liable for
    the damages caused by its breach of its common law duty in relation to the
    operation, management, administration, supervision, funding and control of bail
    hearings in Ontario. She also seeks general and punitive damages.

(3)

Decisions below

(a)

Certification

[11]

The motion judge found that certification should
    be denied because: (i) the pleadings did not disclose a cause of action in
    negligence as the claims are not justiciable; (ii) it is plain and obvious that
    the claims based on breach of fiduciary duty have no prospect of success; (iii)
    the appellants claims for breach of
Charter
rights were not common to
    class members; and (iv) a class proceeding was not the preferable procedure for
    resolution of the class members claims.

[12]

With
    respect to the appellants claims of negligence and breach of fiduciary duty,
    the motion judge first concluded that there could be no cause of action against
    the Crown in its prosecutorial capacity, as the immunity of the Crown as
    prosecutor (except for malicious prosecution) is deeply entrenched in law. As
    the claims could not be aimed at the Crowns actual handling of bail
    proceedings, the causes of action must be aimed at broader decisions related to
    staffing and resource allocation decisions. Such claims require the court to go
    outside of its institutional competence.

[13]

Relying
    on
Phaneuf v. Ontario
, 2010 ONCA 901, 104 O.R.
    (3d) 392, the motion judge concluded that underfunding alone cannot create a
    civil cause of action. He also noted that the impugned government actions were
    core policy decisions, as defined in
R. v. Imperial Tobacco Canada Ltd.
,
    2011 SCC 42, [2011] 3 S.C.R. 45. As a result, the respondent is immune from liability
    in negligence and the negligence claim is doomed to fail.

[14]

The
    motion judge held that the fiduciary claims were also doomed to fail. The issues
    raised by the appellant provide[d] no basis for fiduciary duties as they do
    not require that any one vulnerable individual be favoured over another.

[15]

Finally,
    the motion judge concluded that the only possible cause of action pleaded was
    for breach of
Charter
rights. However, he
    concluded that there were no common issues to be certified. The class needed to
    share not simply a common court infrastructure but a common experience of
    having a specific
Charter
right violated. In
    this case, that would be difficult to demonstrate given that the
Charter
breaches alleged (ss. 7, 9, 11(d), 11(e), and
    12) all share a common thread of reasonableness and that reasonableness is a
    difficult standard to assess as a common issue because the analysis is so fact
    dependent.

[16]

The
    motion judge outlined the potential for multiple causes of the delay in the
    appellants bail hearing. The delay could be attributed to the Toronto Police
    Service (for the delay in transportation), the judge (for adjourning the
    matter), and duty counsel (who needed more time to prepare the appellants
    sureties). As a result, the motion judge found that the
Charter
claims required an individualized assessment of each case and therefore could
    not be certified as a common issue.

[17]

Having
    found that there were no common issues, the motion judge found that the
    proposed class action was not the preferable procedure.
He also
    found that it is in doubt whether there is an identifiable class and
    questioned whether the plaintiff was a suitable representative plaintiff.

(b)

Divisional Court Appeal & the
CLPA

[18]

Ms.
    Cirillo appealed the motion judges certification decision to the Divisional
    Court. The week after she served her notice of appeal, the
CLPA
came into force. The Crown relied on ss. 11(4) and (5)
    of the
CLPA
in its responding factum on appeal
    to argue that certification of the negligence claims was now statute barred. Section
    11(4) provides:

(4) No cause of
    action arises against the Crown or an officer, employee or agent of the Crown
    in respect of any negligence or failure to take reasonable care in the making
    of a decision in good faith respecting a policy matter, or any negligence in a
    purported failure to make a decision respecting a policy matter.

Section 11(5) defines the term policy matter:

(5) For the purposes of subsection
    (4), a policy matter includes,

(a) the creation, design,
    establishment, redesign or modification of a program, project or other
    initiative, including,

(i) 
    the terms, scope or features of the program, project or other initiative,

(ii) 
    the eligibility or exclusion of any person or entity or class of persons or
    entities to participate in the program, project or other initiative, or the
    requirements or limits of such participation, or

(iii) 
    limits on the duration of the program, project or other initiative, including
    any discretionary right to terminate or amend the operation of the program,
    project or other initiative;

(b)  the funding of a
    program, project or other initiative, including,

(i) 
    providing or ceasing to provide such funding,

(ii) 
    increasing or reducing the amount of funding provided,

(iii) 
    including, not including, amending or removing any terms or conditions in
    relation to such funding, or

(iv) 
    reducing or cancelling any funding previously provided or committed in support
    of the program, project or other initiative;

(c)  the manner in which a
    program, project or other initiative is carried out, including,

(i) 
    the carrying out, on behalf of the Crown, of some or all of a program, project
    or other initiative by another person or entity, including a Crown agency,
    Crown corporation, transfer payment recipient or independent contractor,

(ii) 
    the terms and conditions under which the person or entity will carry out such
    activities,

(iii) 
    the Crowns degree of supervision or control over the person or entity in
    relation to such activities, or

(iv) 
    the existence or content of any policies, management procedures or oversight
    mechanisms concerning the program, project or other initiative;

(d)  the termination of a
    program, project or other initiative, including the amount of notice or other
    relief to be provided to affected members of the public as a result of the
    termination;

(e)  the making of such
    regulatory decisions as may be prescribed; and

(f) 
    any other policy matter that may be prescribed.

[19]

The
    Crown also relied on s. 31(4) of the
CLPA
,

which provides for the retroactive extinguishment of claims under s. 11. This
    would have caused the claim to have failed at the first requirement for
    certification in s. 5(1)(a) of the
CPA.


[20]

The
    Divisional Court remitted the question of whether the
CLPA
was a bar to certification of the negligence claims to the motion judge so that
    all the issues could eventually be considered together by the same panel on
    appeal.

(c)

Re-hearing on Crown Immunity

[21]

Relying
    on his original findings of fact, the motion judge held that the impugned
    decisions were core policy decisions and, as a result, ss. 11(4) and (5) of
    the
CLPA

applied to
    the appellants certification motion.

[22]

During
    the hearing, both parties agreed that ss. 11(4) and (5) do not represent a
    substantial change in the common law on Crown immunity. However, the respondent
    submitted that the new sections codify and more clearly define the types of
    decisions for which the Crown is immune.

[23]

The
    motion judge chose not to opine on whether the
CLPA
broadened the scope of Crown immunity from the common law and whether ss. 11(4)
    and (5) of the
CLPA
violate s. 96 of the
Constitution Act
,
1867
,
    because it was unnecessary to do so. He already concluded that the impugned
    decisions were policy decisions under the common law before the enactment of
    the
CLPA
, and nothing in the
CLPA
affected this conclusion.

[24]

The
    appellant appealed the
CLPA
decision to this
    court.
Nordheimer J.A. granted the request to consolidate the appellants
    Divisional Court certification appeal and her
CLPA
appeal so that this
    court could hear both appeals together.

II.

POSITIONS
OF THE PARTIES

The appellant

[25]

The appellant alleges that the motion judge made
    five key errors in his reasons:

·

The motion judge erred in holding that the
    statement of claim did not disclose a claim for negligence. In reaching that
    conclusion, he made several errors, including that he mischaracterized the
    claims as attacking core policy decisions and failed to consider whether the
    causes of action arose from Crown decisions made in bad faith.

·

The motion judge erred by finding that the
CLPA
immunized the respondent from liability without considering whether the
    immunity was vitiated by s. 17 of the
CLPA
, which deals with claims of
    bad faith.

·

The motion judge erred in holding that there was
    no common issue for the
Charter
claim.

·

The motion judge made a palpable and overriding
    error in finding that a class proceeding would not be the preferable procedure
    for resolution of the claims.

[26]

The appellant also argued that the motion judge
    made merits determinations regarding the tenability of the appellants personal
    claim. I address this at the conclusion of my reasons.

[27]

The appellants amended notice of appeal purports
    to appeal the motion judges holding on fiduciary duty, but since she made no
    written or oral submissions on this issue, I understand that she has
    effectively abandoned it.

The respondent

[28]

The respondent submits that, even though the bar
    for certification is low, the motion judge was correct to dismiss the
    certification motion. The Crown submits that there is no tenable cause of
    action. The negligence claims attack core policy decisions. The premise on
    which the appellants
Charter
and negligence claims are based  that
    there is a right to a bail hearing within 24 hours  is flawed. Furthermore,
    there is no identifiable class. Nor are there any common issues, and for that
    reason, a class action is not the preferable procedure.

III.

ISSUES

[29]

The main issue for this court is whether the criteria in s. 5(1) of
    the
CPA
have been satisfied.

IV.

Analysis

[30]

To be certified as a class proceeding, the claim must comply with

s. 5(1)
of the
CPA
. Under s. 5(1) of the
CPA
, in order to be certified as a class action the plaintiff must
    demonstrate that:

(a) the pleadings or the notice of application
    disclose a cause of action;

(b) there is an identifiable class of two or more
    persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members
    raise common issues;

(d) a class proceeding would be the preferable
    procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or
    defendant who,

(i) would fairly and adequately represent the
    interests of the class,

(ii) has produced a plan for the proceeding
    that sets out a workable method of advancing the proceeding on behalf of the
    class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for
    the class, an interest in conflict with the interests of other class members.

[31]

In this case, there is a dispute about the criteria under (a) through
    (d). I will deal with each of those criteria.

(a)

Section 5(1)(a): Cause of action

[32]

Section 5(1)(a) of the
CPA

requires that the pleadings disclose a cause
    of action. The certification requirement under s. 5(1)(a) is the same as r.
    21.01 of the
Rules of Civil Procedure,
R.R.O. 1990, Reg. 194
.
The pleadings cannot form the basis of a claim if it is plain and
    obvious that they do not disclose a cause of action. The causes of action are
    in negligence and breach of
Charter
rights.

(i) Negligence

[33]

The appellants pleading alleges that the Crown owes a duty of care to
    criminal accused and must manage bail court volumes to avoid known
    overcrowding of dockets or provide sufficient resources to address high volume
    of dockets, provide timely transportation from detention to Bail Hearings, establish
    Bail Hearings proximate to the location of Class members arrest and
    detention, pre-arrange necessary interpretation services for Class members,
    and provide Class members with contact to counsel prior to arrival at a Bail
    Hearing.

[34]

The appellant alleges that the respondent has failed to meet the
    standard of care, because it has failed to provide adequate resources to bail
    hearings, which guarantees the volume of bail hearings cannot be heard in a
    timely manner. It has also failed to provide: (1) adequate transportation to
    transport putative class members to bail hearings; (2) adequate interpretation
    services; and (3) counsel access to putative class members prior to their
    arrival at bail court. In addition, the appellant alleges that the respondent
    has breached its standard of care by over-relying on sureties and requiring
    their attendance at bail hearings.

[35]

The motion judge determined these claims were core policy decisions and
    thus could not ground a negligence claim.

[36]

The appellant submits that the motion judge erred in concluding that these
    claims relate to core policy decisions. Rather, she says the allegations relate
    to operational decisions, not policy choices.

[37]

I do not agree. The claims on their face relate to core policy
    decisions. Contrary to the appellants submission, further evidence on this
    issue is unnecessary.

[38]

The Supreme Court has described the type of policy decisions that cannot
    ground an action in tort in
Imperial Tobacco
, at para. 87:

Instead of
    defining protected policy decisions negatively, as not operational, [they are
    defined] positively as discretionary legislative or administrative decisions
    and conduct that are grounded in social, economic, and political
    considerations. Generally, policy decisions are made by legislators or officers
    whose official responsibility requires them to assess and balance public policy
    considerations. The decision is a considered decision that represents a
    policy in the sense of a general rule or approach, applied to a particular
    situation. It represents a course or principle of action adopted or proposed
    by a government:
New Oxford Dictionary of English
(1998), at p. 1434.
    When judges are faced with such a course or principle of action adopted by a
    government, they generally will find the matter to be a policy decision.
The weighing of social, economic, and political considerations
    to arrive at a course or principle of action is the proper role of government,
    not the courts. For this reason, decisions and conduct based on these
    considerations cannot ground an action in tort.
[Emphasis added.]

[39]

In
Imperial Tobacco
, the court moved away from the stark dichotomy between
    policy/operational decisions in favour of a more principled test.  Referring
    back to
Imperial Tobacco
,
    the court in
Hinse v. Canada
, 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 23, confirmed the nature of
    core policy decisions that are protected from suit:

[I]t is not helpful
    to posit a stark dichotomy between policy decisions and operational decisions,
    or to define policy decisions negatively as decisions that are not
    operational decisions: paras. 84-86. Although it refrained from establishing
    a black-and-white test, the Court concluded that core policy government
    decisions that are protected from suit are decisions as to a course or
    principle of action that are based on public policy considerations, such as
    economic, social and political factors, provided they are neither irrational
    nor taken in bad faith.

[40]

The negligence claims against the respondent in this proposed class
    action are clearly aimed at core policy decisions. They relate to resource
    allocation for bail hearings and staffing.  The supporting material filed on
    the motion refers to the adequacy of physical court space and the need to
    build (instead of to renovate) courthouses. The claims focus on the role of
    government wielding its executive authority to determine the allocation and
    adequacy of resources devoted to the criminal justice system.

[41]

The motion judge described the nature and breadth of the negligence claims,
    concluding the appellant challenged core policy decisions:

For a litigant to seek redress for the
    government's resource decisions on a province-wide basis, to bring an action
    that requires a court to delve into the propriety and efficiency of those
    decisions, is to go outside the court's institutional competence.

The sheer magnitude
    of this class action, its design in alleging liability for policy decisions at
    a high
level
, its direct impugning
    of the Provinces budgetary process, makes it legally untenable. It raises
    causes of action that do not exist and encounters Crown immunities that apply
    to these kinds of wide-ranging policy decisions. They are in the nature of
    core policy decisions  i.e. decisions as to a course or principle of action
    that are based on public policy considerations, such as economic, social and
    political factors, provided they are neither irrational nor taken in bad faith
     and are protected from suit. [Citations omitted.]

[42]

The appellant alleges that the motion judge erred by inserting an
    analysis of resource allocation and underfunding into the proximity stage of
    the
Anns
analysis instead
    of considering them at the second residual policy stage of the
Anns
test. In my view, this makes no practical
    difference in this case. At whatever stage policy immunity is considered, the
    result is the same. The motion judge did not err when he concluded that the
    claim implicated core policy decisions and as such, there could be no claim in
    negligence.

[43]

The appellant has submitted that the motion judge failed to consider that
    the operational failures were taken in bad faith. This is not correct. The
    motion judge correctly found that bad faith was not alleged in the pleadings
    and no particulars were pleaded. Further, the appellants witnesses
    acknowledged that there was no allegation of bad faith.

[44]

I agree with the motion judge that it is plain and
    obvious that the claims in negligence do not disclose a cause of action.

[45]

I add that, in any event, the negligence claims would not satisfy the
    remaining criteria in ss. 5(1)(b) and (d) largely for the same reasons set out
    below in relation to the
Charter
claims.

(ii)
Charter

claims

[46]

The motion judge accepted that the
Charter
claims could satisfy
    the cause of action criterion:

The only possible causes of action pleaded
    that can survive the obstacles identified above are the claims for breach of
Charter
rights.

Needless to say, there are no Crown immunities
    for breach of the
Charter
. It is undeniable that an "[u]nreasonably
    prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of
    the
Charter
". It is equally the case that such unreasonable denial
    of bail impugns the presumption of innocence in s. 11(d) of the
Charter
.

Furthermore, the
Charter
claims are framed
    in a way that does not raise a justiciability problem in the same way as the
    negligence and fiduciary duty claims do. They are more specifically aimed at
    the role of the Crown in the bail process itself and not at the
    "government in its generic sense

meaning he whole of the apparatus of
    state", which would beyond the scope of a valid
Charter
claim.

[47]

The motion judge
nonetheless refused to certify
    the
Charter
claims. He
    did so because the
Charter
claims raised no common issues and so a class proceeding is not the
    preferable procedure. He also doubted that there is an identifiable class.

[48]

I agree with the motion judge that the
Charter
claims should not be certified.

[49]

I do not need to address the viability of the cause of action with
    respect to the
Charter
claims. Even if the
Charter
claims
    were to satisfy s. 5(1)(a), they do not meet the identifiable class, common
    issue or preferability criteria. I turn to those now.

(b)

Se
ction 5(1)(b):
    Identifiable class

[50]

A class definition must be defined by reference
    to objective criteria, without reference to the merits of the action:
Hollick
    v. Toronto
,

2001 SCC 68, [2001] 3 S.C.R. 158, at para. 17.

[51]

As noted above, the appellants putative class
    includes all persons within the class period who did not get a bail hearing
    within 24 hours as a result of certain criteria:

The Plaintiff brings this action pursuant to
    the CPA on her own behalf and on behalf of all other persons who were arrested
    and detained for a period of more than 24 hours prior to any meaningful Bail
    Hearing being available as a result of:

(a) the matter not being reached;

(b) transportation, or lack thereof, from
    detention to the bail hearing;

(c) interpretative services not present at the
    bail hearing;

(d) the accused not having the opportunity to
    speak with counsel prior to arriving at the bail hearing; or

(e) the Crown not being willing to proceed
    with a hearing.

for the time
    period of January 1, 2000 to the present, but excluding individuals charged
    with an offence mentioned in s.469 of the Criminal Code (the
    "Class").

[52]

In addition to appearing in the statement of
    claim, the as a result of qualification appears throughout the proceedings: in
    the motion record, in argument before the motion judge, in the proposed common
    issues and the factum, and in argument before this court.

[53]

A causation criterion is inherently merit-based.
    In
Ragoonanan Estate v. Imperial Tobacco
(2005)
,
78 O.R. (3d)
    98 (S.C.), affd (2008) 236 O.A.C. 199 (Div. Ct.), the court did not certify a
    class proceeding because there was a causation element in the class
    identification. The proposed action was on behalf of persons who claimed that a
    certain brand of cigarette ignited furniture or a mattress. The motion judge held,
    at para. 37:

[The proposed class
    definition] is merits-based because its application depends on proof of damage
    caused by fire and also on the resolution of a number of other issues of
    causation which may be seriously in dispute. These would include the question
    whether the fire started on upholstered furniture, or a mattress; whether the
    ignition source of the fire was a cigarette; and, if so, whether it was
    manufactured by the defendant. For these reasons, I find that the membership
    of such a class would not be sufficiently "identifiable" within the
    meaning of s. 5(1)(b).

[54]

Here, the difficulty is that a factual
    determination is required as to the cause of the delay beyond 24 hours.
In an attempt to circumvent this problem, the appellant submitted that
    the right to a hearing is actually within a reasonable time. This
    qualification is also problematic for it results in a class definition that
    would be based on individual assessments and would be incapable of objective
    determination.

[55]

I conclude that the identifiable class criterion is
    not met.


(c)

Section 5(1)(c): Common issues

[56]

Common issue 5 relates to the
Charter
claims:

By its operation, management or administration
    of bail hearings in Ontario, did the Defendant breach the class members'
Charter
rights under ss. 7, 9, 11(d), 11(e) and/or 12?

i) If the answer to common issue (5) is
    "yes", can the breach be saved by s. 1 of the
Charter
?

ii) If the answer
    to common issue (5) is "yes", and the answer to common issue (5)(i)
    is "no", are the class members entitled to damages pursuant to s.
    24(1) of the
Charter
?

[57]

The appellant submits that the question to be asked
    is whether there is some basis in fact supporting a conclusion that the
    proposed common issues are common to all class members in the sense that their
    resolution will avoid duplication of fact-finding or legal analysis:
Pro-Sys Consultants Ltd. v. Microsoft Corp.,
2013 SCC 57, [2013] 3 S.C.R. 477, at para. 102;
Western Canadian
    Shopping Centres Inc. v. Dutton,
2001 SCC 46,
    [2001] 2 S.C.R. 534,
at para. 39.

[58]

Here, the motion judge quoted the following
    passage from a leading text on class actions in describing the cause of action
    requirement:

The [common issue] requirement is set out
    succinctly in Warren Winkler, Paul Perell, Jasminka Kalajdzic, and Alison
    Warner,
The Law of Class Actions in Canada
(Toronto: Canada Law Book,
    2014), 112-13:

[I]f an issue
    can be resolved only by asking it of each class member, it is not a common
    issue An issue is not common simply because the same question arises in
    connection with the claim of each class member, if that issue can only be
    resolved by inquiry into the circumstances of each individuals claim... The
    fact of a common cause of action asserted by all class members does not in
    itself give rise to a common issue since the actual determination of liability
    for each class member may require individualized assessments.


[59]

The motion judge noted that [a]t the very least, the claim must
    share not only a common court infrastructure but a common experience of having
    a specific
Charter
right violated. He noted that all of the
Charter
issues that were said to be engaged share[d] a common thread of
    reasonableness and that [r]easonableness is a difficult issue to assess as a
    common issue. He concluded that [t]he proposed common issues pertaining to the
Charter
claims require individualized and particularized assessments
    of each case. I agree with that conclusion.

[60]

Here, the appellant asks whether [b]y its
    operation, management or administration of bail hearings in Ontario the
    Defendant breach[ed] the class members'
Charter
rights under ss. 7, 9,
    11(d), 11(e) and/or 12.

[61]

The appellant submits that all class members
    share an interest in whether the Crowns conduct offended the
Charter
,
    even if there is a significant level of difference among the class members,
    even if the common questions require nuanced answers based on the varied
    circumstances of class members, and even when there may be individual issues
    remaining following the trial of common issues. She submits that the
    reasonableness inquiry does not preclude a common determination. She also
    submits, pointing to several cases, that courts have repeatedly certified
    claims based on alleged
Charter
breaches.

[62]

For instance, in
Johnson v. Ontario
,
    2016 ONSC 5314, 364 C.R.R. (2d) 17, the plaintiffs were former inmates of the
    Elgin-Middlesex Detention Centre. They contended that overcrowding coupled with
    a lack of supervision resulted in inhumane conditions. Their statement of claim
    included a number of causes of action, including breach of ss. 7 and 12 of the
Charter.
The motion judge found that the questions relating to the alleged breaches of
    ss. 7 and 12 raised common issues. The focus was on the general operational
    methods adopted by the Detention Centre.

[63]

In
Lauzon v. Canada (Attorney General)
,
    2014 ONSC 2811, 58 C.P.C. (7th) 201, affd 2015 ONSC 2620
,
384 D.L.R. (4th)
    532 (Div. Ct.)
, the plaintiff
    sought to certify a class action on behalf of a class of inmates who wore
    t-shirts that were designed to commemorate Prisoner Justice Day. The Crown
    subsequently prohibited possession of the t-shirts. The plaintiffs claimed the
    Crowns conduct breached their right to freedom of expression under s. 2(b) of
    the
Charter
. T
he motion judge concluded
    that the proposed common issues on breach of the
Charter
satisfied the
    common issues requirement. The activity in question was the same (wearing the
    t-shirts at Joyceville), the prohibition was imposed on all inmates, and if
    there was a breach, the s. 1 analysis would be common to all inmates.

[64]

Finally, the appellant relies on
Good v.
    Toronto Police Services Board
, 2014 ONSC 4583, 121 O.R. (3d) 413 (Div.
    Ct.), aff'd 2016 ONCA 250, 130 O.R. (3d) 241, leave to appeal refused, [2016]
    S.C.C.A. No. 255. There, the plaintiff alleged a breach of the class members
    rights not to be arbitrarily detained during the G20 summit in Toronto. There
    was some basis in fact of commonality: it was alleged a common order was made
    ordering the detention of the class members without regard for the individual
    characteristics or conduct of each class member.

[65]

In my view, these cases share a distinguishing
    feature. The
Charter
questions arise from a single course of conduct:
Johnson
considered the common conditions inmates experienced in the same jail;
Lauzon
involved the decision to prohibit the t-shirts;
Good
involved an
    alleged command order to box in certain groups during a protest. Here, there
    is no single course of conduct giving rise to the alleged breaches.


[66]

I consider the British Columbia Court of
    Appeals analysis in
Thorburn v. British Columbia,
2013 BCCA 480, 52
    B.C.L.R. (5th) 130, to be applicable. In that case, the representative
    plaintiff had been arrested at a protest and strip-searched in accordance with
    a specific policy. The plaintiff brought a class proceeding on behalf of those
    persons who were not remanded into pre-trial custody at the jail but who were
    subjected to routine strip searches. The motion judge dismissed the certification
    motion, and the Court of Appeal upheld the decision. At paras. 41-42, the court
    stated:

An unreasonable policy alone could not provide
    the foundation for determining each class members cause of action of an
    unreasonable search; only an individual assessment of the relevant
    circumstances unique to each class member would allow a judge to determine if a
    cause of action had been established.



[A] finding of a
    s. 8
Charter
violation as a result of an unreasonable search of one class
    member will not found a similar finding for another class member as a finding
    of an unreasonable search is dependent on a multitude of variable circumstances
    unique to each class member.

[67]

Here, the
Charter
claims are similarly
    not capable of common determination. For example:

Sections 7 and 9
: Any detention would have resulted from adjournment and remand
    orders, which are not being challenged. If they were challenged, the case would
    depend on the reasons why each was made.

Section 11(e)
: Whether bail was reasonable, including whether the terms of
    release were reasonable, are individual questions.

Section
    12
: The pleading does not contain factual
    allegations that would support this claim. Detention pursuant to a court order,
    without more, does not constitute cruel and unusual punishment. To the extent
    that any putative class member has a claim for cruel and unusual punishment,
    the facts that would support it would be necessarily individual: see
Ogiamien
    v. Ontario (Ministry of Community Safety and Correctional Services)
, 2017
    ONCA 667, 355 C.C.C. (3d) 41, at paras. 67-68;
Toure v. Canada (Minister of
    Public Safety and Emergency Preparedness)
, 2018 ONCA 681, 419 C.R.R. (2d)
    114, at paras. 75-76.

[68]

Accordingly, I conclude that
t
he common issue requirement is not met.

(d)

Section 5(1)(d): preferable procedure

[69]

Despite the allegation of a systemic wrong, a class proceeding is not
    the preferable procedure. This court in
Dennis v.
    Ontario Lottery and Gaming Corp.
, 2013 ONCA 501, 115
    O.R. (3d) 321, at para. 71, leave to appeal refused, [2013] S.C.C.A. No. 373,
    said:

Even if the class
    definition and common issue requirements were satisfied, it is my view that a
    class action is not the preferable procedure. A general finding of
    "systemic wrong" would not avoid the need for protracted
    individualized proceedings into the vulnerability and circumstances of each
    class member. A more efficient and expeditious way to adjudicate these claims
    would be to proceed directly by way of individual actions as it is inevitable
    that a class proceeding will break down into individual proceedings in any
    event.

[70]

Similarly, in light of the foregoing conclusions, a class proceeding is
    not the preferable procedure. I agree with the motion judges reasons.

(e)

Crown Liability and Proceedings Act

[71]

The Divisional Court remitted the matter to the
    motion judge for a decision on the impact of the
CLPA
. He concluded
    that his decision was unaffected by the enactment of the new statute.

[72]

After oral submissions in this court, the
    parties requested and were given the opportunity to make brief further
    submissions with respect to the release of
Leroux

v. Ontario,
2021 ONSC 2269 (Div. Ct.) and
Francis v. Ontario,
2021 ONCA 197
.
Neither case impacts my conclusions on the substantive issues set out above. Given
    my conclusions, I do not need to address the
CLPA
or

Leroux
and

Francis
.

V.

Appellants
    personal claims in negligence

[73]

Although the appellants factum states that the
    motion judge struck her personal claim in negligence, the order of May 23, 2019
    only dismisses the certification of the class proceeding. The order of June 26,
    2020 determines that the
CLPA
is a
bar to the
certification
of her negligence claims. An appeal is
    from the order and not the reasons:
Fram Elgin
    Mills 90 Inc. v. Romandale Farms Ltd.
, 2016 ONCA
    404, 131 O.R. (3d) 455, at para. 33
. Consequently, I conclude that the issue is not properly before us and
    make no determination with respect to her personal claims.

VI.

CONCLUSION

[74]

The proposed class action does not meet the certification requirements
    of the
CPA
.

[75]

I would dismiss the appeal. If the parties do not
    agree on costs, I would request written submissions limited to five pages
    within 15 days of the release of this decision.

Released: May 26, 2021 P.R.

M.L.
    Benotto J.A.

I
    agree Paul Rouleau J.A.

I
    agree J.A. Thorburn J.A.


