



COURT OF APPEAL FOR ONTARIO

CITATION:  Good v. Toronto (Police Services Board), 2016 ONCA
    250

DATE: 20160406

DOCKET: C60095

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

Sherry Good

Plaintiff (Respondent)

and

Toronto Police Services
    Board
, Attorney General of Canada, Her Majesty the Queen in Right of
    Ontario and Regional Municipality of Peel Services Board

Defendant (Appellant)

Kevin McGivney, Cheryl M. Woodin and Damian Hornich, for
    the appellant

Eric K. Gillespie, Kent Elson, Kiel Ardal and Priya
    Vittal, for the respondent

David Morritt and Alexis Beale, for the intervener, Canadian
    Civil Liberties Association

Heard: February 1, 2016

On appeal from the orders of the Divisional Court (Justices
    David Aston, Ian V.B. Nordheimer and Maria T. Linhares de Sousa), dated August
    6 and October 29, 2014, with reasons reported at 2014 ONSC 4583 and 2014 ONSC
    6115, allowing an appeal from the order of Justice Carolyn J. Horkins of the
    Superior Court of Justice, dated May 23, 2013, with reasons reported at 2013
    ONSC 3026 and 201 ONSC 5086.

Hoy A.C.J.O.:


1.

OVERVIEW

[1]

During the G20 summit held in June 2010, demonstrations occurred at
    various locations in the City of Toronto. Police encircled or boxed-in groups
    at multiple locations. At three of the locations, the individuals detained were
    arrested and taken to a central Detention Centre specially constructed for the
    G20 event. The conditions at the Detention Centre were poor. Significant delays,
    overcrowding, and a breakdown in prisoner care occurred.
[1]
In total, approximately 1,000 people were arrested or detained.

[2]

The plaintiff, Sherry Good, was among them. She commenced a proposed
    class action against Toronto Police Services Board (TPS) and three other
    defendants asserting multiple claims, including breach of her
Charter

rights and those of the putative class members.

[3]

The motion judge dismissed the plaintiffs motion for certification of
    the proposed class proceeding under the
Class Proceedings Act, 1992
,
    S.O. 1992, c. 6 (the Act). Before appealing to the Divisional Court, the
    plaintiff narrowed her proposed class proceeding.

[4]

The Divisional Court set aside the order of the motion judge and
    certified the narrowed claim as two separate class proceedings.

[5]

The Divisional Court also awarded costs of the original certification
    motion in the all-inclusive amount of $125,728.03 in favour of the plaintiff.
    The costs awarded were significantly reduced from those sought by the plaintiff
    to reflect the time that was spent on the unsuccessful aspects of the claim as
    originally advanced.

[6]

TPS appeals from the order of the Divisional Court certifying the
    two proceedings and asks this court to restore the order of the motion judge. The
    plaintiff seeks leave to cross-appeal the costs awarded by Divisional Court.

[7]

Below, for reference, I first set out the test that must be met before
    the court will certify a class proceeding. Next, I provide an overview of the
    certification decisions of the motion judge and the Divisional Court. Then I
    set out the issues on the certification appeal and proceed to my analysis of
    those issues. Finally, I address the plaintiffs cross-appeal of the costs
    awarded by the Divisional Court.

2.

THE TEST FOR CERTIFICATION

[8]

Section 5(1) of the Act sets out the test that must be met before the
    court will certify a class proceeding:

5(1) The court shall certify a class proceeding
    on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application
    discloses 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.

3.

THE MOTION
    JUDGES CERTIFICATION DECISION

3.1.

The class proceeding as
    framed before the motion judge

[9]

Before the motion judge, the proposed defendants included the Attorney
    General of Canada (Canada), Her Majesty the Queen in Right of Ontario
    (Ontario), and Regional Municipality of Peel Police Services Board (Peel).
    The plaintiff pleaded multiple causes of action: false imprisonment, assault
    and battery, conversion and trespass to chattels, abuse of public office,
    systemic negligence, breach of the
Canadian Charter of Rights and Freedoms
and discrimination under the
Human Rights Code
, R.S.O. 1990, c. H.19
.

[10]

The
    plaintiff proposed a class definition with eight subclasses: one for each of
    five locations where police boxed in and detained individuals; one for
    individuals detained or arrested in the vicinity of Queens Park; a residual
    subclass for individuals who were arrested in relation to the G20 Summit at
    other locations and eventually released without charge; and one for individuals
    imprisoned at the Detention Centre. The class and subclasses as proposed to the
    motion judge are set out in Schedule A.


[11]

Not
    every cause of action was pleaded with respect to every subclass.

3.2.

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

[12]

In
    thorough and careful reasons, the motion judge applied the five-part test for
    certification in s. 5(1) of the Act. She concluded that none of the claims
    against Canada, Ontario or Peel satisfied the s. 5(1)(a) requirement that the
    pleadings disclose a cause of action. However, she found that it was not plain
    and obvious that the following claims against TPS would fail, and that they
    therefore met the first prong of the s. 5(1) test: false imprisonment; battery
    (except in relation to individuals detained at the Detention Centre); assault
    in respect of two of the five location-based subclasses; conversion and
    trespass to chattels; and the
Charter
and human rights claims.

3.3.

Section 5(1)(b): Identifiable
    class

[13]

The
    motion judge found that the plaintiff had not met the s. 5(1)(b) requirement of
    an identifiable class. At para. 153, she characterized the plaintiff as seeking
    to certify, as one class, eight distinct groups of claims with no common link.
    That, she held, was contrary to s. 5(2) of the Act and to applicable case law 
    in particular,
Merck Frosst Canada Ltd. v. Wuttunee
, 2009 SKCA 43,
69 C.P.C. (6th) 60
, leave to appeal to S.C.C. refused, 2009
    CanLII 57570;  and
Caputo v. Imperial Tobacco Ltd.
(2004)
,
236 D.L.R.
    (4th) 348
(Ont. S.C.J.), at para. 45. In her view, the only proposed
    common issue that applied to all of the class was the systemic negligence claim
    which she had struck.

[14]

In
    addition to what she described as this fatal flaw, she noted that various
    unclear words and phrases were used in defining the subclasses, which in her
    view would impair the ability to identify persons with a potential claim,
    define who would be bound by the result, and describe who was entitled to
    notice of the proceeding. She identified the phrase in the vicinity of Queens
    Park, the definition of the residual subclass, and the phrase mass detention
    in the various subclass definitions as unclear.

[15]

Finally, she concluded that the class and subclass definitions
    were overly broad. While the proposed class definition and most of the
    subclasses excluded persons who were charged during the G20 summit, not all
    persons who engaged in unlawful conduct were necessarily charged. The
    definitions could include individuals who engaged in unlawful conduct and were
    lawfully detained and arrested.

[16]

The
    motion judge concluded that because the plaintiff failed to satisfy s. 5(1)(b),
    the certification motion failed. However, she went on to consider the
    requirements of s. 5(1)(c), (d) and (e).

3.4.

Section 5(1)(c): Common
    issues

[17]

Section
    5(1)(c) requires that the claims or defences of the class members raise common
    issues. By the end of the certification hearing, there were 22 proposed common
    issues before the motion judge. They are set out in Schedule B.

[18]

The
    motion judge addressed the common issues only as they related to TPS, since she
    had found that the pleadings did not disclose a cause of action against
    Ontario, Canada or Peel. She also restricted her analysis to the common issues
    arising from the surviving claims against TPS. The common issues were further
    narrowed before the Divisional Court and, in turn, I will only highlight her
    conclusions on these latter common issues.

[19]

The
    first of those issues was whether each mass detention and/or arrest (or the
    prolonged duration thereof) constituted false imprisonment and/or arbitrary
    detention or imprisonment contrary to s. 9 of the
Charter
.

[20]

The
    motion judge held that this was not a common issue.  At para. 205, she found
    that individual officers were responsible for deciding whether detention,
    arrest and a charge were appropriate.  At para. 206, she rejected the
    plaintiffs argument that because a command was made to arrest a group, the
    lawfulness of that arrest could be decided in common.  She focused on what she
    found was evidence that individual conduct among protesters at the G20 Summit
    varied.

[21]

The
    second set of remaining common issues related to the conditions or treatment of
    the class members imprisoned at the Detention Centre. At para. 245, the motion
    judge concluded that these proposed common issues were indeed common issues and
    noted that TPS did not dispute this.

[22]

The
    third set of common issues related to remedies:

If the Defendants breached the class members common law or
Charter
rights, can the Court make an aggregate assessment of damages as part of the
    common issues trial?

Were the Defendants guilty of conduct that justifies an award
    of punitive damages?

Are declarations regarding the lawfulness of certain police
    actions and/or tactics during the G20 Summit warranted?

Are orders requiring the Defendants to expunge certain records
    warranted?

[23]

The
    motion judge wrote, at para. 247, that, rather than proposing an issue to be
    determined at trial, [the first of these issues] asks whether the proposed
    common issue can be determined at the common issues trial. She concluded that
    aggregate damages were inappropriate in this case. She wrote, at para. 250:

It is clear from the evidence and even from the pleading that
    the experience of the proposed class members varied. This is not a case where
    monetary liability could be ascertained on a global basis. One obvious example
    is the contrast between those detained in the detention center and those who
    were not. Another example is the experience of Jessica Cole at Queens Park.
    Her arm was broken. This is obviously not an experience shared by all in this
    subclass.
[2]


[24]

Because
    she had determined that the certification motion would fail for other reasons,
    the motion judge did not go on to consider the other remedy-related proposed
    common issues, including punitive damages.

3.5.

Section 5(1)(d): Preferable
    procedure

[25]

The
    motion judge then considered the requirement in s. 5(1)(d) that the class
    proceeding be the preferable procedure for the resolution of the common issues.
    She concluded, at para. 255:

It is clear given the lack of commonality that a class action
    would not be a fair, efficient and manageable method of advancing the claim.
    The impermissible use of eight subclasses creates an unwieldy group of claims.
    There is no single class that shares substantial common issues (
Caputo
,
at para. 45.) The common issues are subsumed by a plethora of individual
    issues. The result would be unmanageable litigation punctuated by numerous
    individual inquiries, and full trials for each class member. Instead of furthering
    the goal of judicial economy, a class proceeding would impede this important
    goal.

[26]

She
    also noted that in this case behaviour modification did not depend on a class
    action. The conduct of police officers during the G20 summit had been and was
    continuing to be reviewed by various bodies and committees. Moreover,
    individual actions were being pursued in respect of events arising out of the
    G20 summit.

3.6.

Section 5(1)(e): Representative
    plaintiff and a workable litigation plan

[27]

Finally,
    the motion judge considered the requirement of s. 5(1)(e). She noted the
    plaintiffs proposal to add a second representative plaintiff, Thomas Taylor,
    who had been detained at the Detention Centre to address the fact that the
    plaintiff had not. She concluded that the litigation plan did not set out a
    workable plan for advancing the proceeding on behalf of the class.

3.7.

Disposition

[28]

The
    motion judge dismissed the certification motion.

4.

THE
    DIVISIONAL COURTS CERTIFICATION DECISION

4.1.

The
    class proceeding as framed before the Divisional Court

[29]

As noted above, before appealing to the Divisional Court, the
    plaintiff narrowed her proposed class proceeding. She shrunk the proposed
    class, dropped her claim against all defendants except TPS, and abandoned a
    number of the claims asserted before the motion judge.
The Divisional Court prefaced its analysis by noting that the proposed
    class action on appeal was markedly different from the proposed class action
    considered by the motion judge.

4.2.

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

[30]

The
    Divisional Court noted that it was not disputed that the s. 5(1)(a) cause of
    action requirement was met. The plaintiff had dropped the causes of action that
    the motion judge had found were not made out.

4.3.

Section 5(1)(b): Identifiable
    class

[31]

At
    the Divisional Court, the plaintiff eliminated two of the subclasses. 
    Significantly, one of these subclasses was the residual subclass, consisting
    of persons arrested at locations other than those where mass detentions were
    alleged to have occurred and eventually released without charge. The motion
    judge had found the definitions of both of the eliminated subclasses to be
    unclear. The revised proposed class definitions are set out in Schedule C. The
    Divisional Court was satisfied that the identifiable class criterion was met by
    these definitions.

[32]

The
    Divisional Court disagreed with the motion judge that the phrase mass
    detention in the class definitions was confusing.

[33]

It also disagreed that the class definitions were overly broad
    because they might include individuals whose conduct warranted arrest.

[34]

Finally,
    it concluded that the motion judge erred in concluding that it was
    impermissible to certify a proceeding with multiple location-based subclasses.
    Section 5(2) of the Act, referred to by the motion judge, did not prohibit
    multiple subclasses within a class. This case, it held, was different from
Caputo
,
which the motion judge had relied on in her analysis. In
Caputo
,
    the proposed classes lacked the essential element of commonality. Moreover,
Caputo
did not suggest that a representative plaintiff cannot combine classes in a
    single proceeding.  The Divisional Court wrote, at paras. 35, 36 and 38:

In this case, there is a single defendant and a single course
    of conduct alleged. Each of the proposed subclasses (save for the Detention
    Centre subclass) have the commonality of an alleged command order being made
    ordering the detention of the class members without regard for the individual
    characteristics or conduct of each class member. Indeed, it is alleged that one
    command officer, Superintendent Fenton, issued the command order in at least
    three of the five location based subclasses.

Further, allowing multiple subclasses to be joined in the same class
    proceeding, where they share a central common issue, facilitates two of the
    recognized goals of class proceedings: judicial economy and improving access to
    justice. As McLachlin C.J.C. said in
Hollick
,

at para. 15:

In my view, it is essential therefore that courts not take
    an overly restrictive approach to the legislation, but rather interpret the Act
    in a way that gives full effect to the benefits foreseen by the drafters.



[E]ven if the respondent was correct in its interpretation of
    the effect of
Caputo
, all that would result would be the creation of
    five separate class actions  one for each subclass  each with the same single
    defendant. If that were to be the result, there would be strong reasons for
    those five separate class actions to be tried together including for reasons of
    judicial economy, similarity of issues, common evidence and others. The end
    result, in practical terms, would be the same.

4.4.

Section 5(1)(c): Common
    issues

[35]

Eleven
    common issues were proposed at the Divisional Court. These are set out in
    Schedule D.

[36]

Unlike
    the motion judge, the Divisional Court concluded that the first of these  whether
    there was false imprisonment or a breach of s. 9 of the
Charter
 was a
    common issue. It explained, at paras. 46-7 and 49, that
R. v. Mann
, 2004
    SCC 52, [2004] 3 S.C.R. 59, requires that the officer who gives the order to
    detain a person have reasonable cause to suspect that such person is criminally
    implicated in a recent or ongoing criminal offence. The test is even higher for
    an arrest. Both tests share a subjective and an objective element. The
    Divisional Court observed that, in this case, it is alleged that the command
    order was given without regard to whether any particular individual swept up in
    the mass detention was or was not implicated in the criminal activity with
    which the police were concerned, i.e. that the requirements for a lawful
    detention were unmet: paras. 47-48.

[37]

In
    the Divisional Courts view, the motion judge impermissibly assessed the merits
    of the claims rather than considering whether there was some basis in fact for
    the proposition that the members of the class were arbitrarily detained and/or
    arrested in violation of their rights at common law or under s. 9 of the
Charter
.
It concluded that there was some basis in fact for this proposition and amended
    the issue to include the question  proposed as common issue 7  of whether s.
    1 of the
Charter
could have application.

[38]

The
    Divisional Court found that there was no basis in fact to find that proposed
    common issue 2 was a proper common issue.

[39]

The
    Divisional Court concluded that proposed common issues 3 to 6, which arise out
    of the treatment of class members at and conditions in the Detention Centre,
    were proper common issues.

[40]

The
    Divisional Court came to a different conclusion from the motion judge on the
    suitability of aggregate damages as a common issue. While it agreed with the
    motion judge that some limited individual examination might be necessary
    before a final award of damages could be made, this would not preclude an
    aggregate assessment of some level of damages for the class members. Relying on
    para. 134 of
Pro-Sys Consultants Ltd. v. Microsoft Corporation,
2013 SCC 57, [2013] 3 S.C.R. 477
,
it
    concluded that it should be open to a common issues trial judge to consider
    whether aggregate damages would be an appropriate remedy. It therefore found
    that proposed common issue 8 was a proper common issue.

[41]

The
    Divisional Court rejected TPSs argument that
Robinson v. Medtronic
,
    Inc.
(2009),
80 C.P.C. (6th) 87 (Ont. S.C.J.), affirmed
2010
    ONSC 3777 (Div. Ct.), stands for the proposition that punitive damages cannot
    be included as a common issue unless it will be known at the conclusion of the
    common issues trial what level of compensatory damages will be awarded. It
    stated, at para. 79, that if
Robinson
stood for that proposition, it
    disagreed with it. It concluded, at paras. 82-83, that the common issues trial
    judge would be in a position to make an informed decision on the
    appropriateness of an award of punitive damages and, accordingly, that whether
    TPS was guilty of conduct that justifies an award of punitive damages  proposed
    common issue 9  was a proper common issue.

[42]

The
    Divisional Court was also satisfied that proposed common issues 10 (whether
    declaratory relief is warranted) and 11 (whether orders requiring TPS to
    expunge certain records are warranted) were proper common issues.

4.5.

Section 5(1)(d): Preferable
    procedure

[43]

The
    Divisional Court concluded that a class proceeding was the preferable procedure
    for the location-based subclasses. It described common issue 1 (false
    arrest/breach of s. 9) as the core allegation of these subclasses. It noted
    that the plaintiff alleged that a single command was made with respect to the
    mass arrest and/or detention at each of the locations. There was obvious
    judicial economy in determining once, for all members of the subclasses, on
    what basis the order to detain and/or arrest was made and how that order was
    communicated.

[44]

It
    also concluded that the case raised a very serious access to justice issue.
    Most of the affected individuals would be unwilling to devote the time and
    expense necessary to seek individual relief. The fact that only a small number
    of individual cases had been commenced supported this conclusion.

[45]

In
    its view, the various investigations undertaken of the policing at the G20 summit
    did not achieve the goal of behaviour modification. It concluded, at para. 95,
    that an award of damages could be the most telling and lasting expression that
    [the police conduct alleged] should never be tolerated.

[46]

While
    the Divisional Court concluded that a class action was also the preferable way
    of determining the issues raised by the Detention Centre, it noted, at para. 99:

The issues raised by the Detention Centre subclass are not
    similar to the issues raised by the location based subclasses nor do they
    involve similar evidence nor do they apparently involve even the same decision
    makers. Indeed, the only common theme between the two is the fact that the
    claims emanate out the G20 summit and the conduct of the police for whom [TPS]
    is responsible.

[47]

Accordingly,
    it concluded that there should be a separate class action to determine the
    issues raised by the Detention Centre.

4.6.

Section 5(1)(e): Representative
    plaintiff and workable litigation plan

[48]

The
    Divisional Court concluded that there was no legitimate complaint regarding the
    ability of the plaintiff to represent the location-based subclasses and the
    ability of Mr. Taylor to represent the Detention Centre class. It noted that
    while the litigation plan might have to be reworked given its conclusion that
    two separate class actions should be certified, it was otherwise adequate. TPSs
    criticisms of the litigation plan mirrored its criticisms of the common issues
    and had already been addressed.

4.7.

Disposition

[49]

The
    Divisional Court certified two class actions, one to determine the common
    issues for the location-based subclasses and one to determine the issues
    arising out of the Detention Centre. The certified common issues for each are
    set out in Schedule E. The plaintiff is the representative plaintiff for the
    former; Mr. Taylor is the representative plaintiff for the latter.

5.

THE
    ISSUES ON TPS APPEAL OF CERTIFICATION

[50]

TPS
    argues that in certifying the action the Divisional Court made the following
    errors:

1)

It improperly
    conducted a
de novo
review of the issue of whether the requirements of
    s. 5(1) of the Act had been met, rather than applying an appellate standard of
    review to the motion judges determination that they had not.

2)

It erred in concluding
    that the plaintiff had met the s. 5(1)(b) identifiable class criterion.

3)

It erred in
    identifying the following as common issues, when they are not:


i.

Did each mass detention and/or arrest (or the prolonged duration
    thereof) constitute (a) false imprisonment of the respective subclass members
    at common law and/or (b) arbitrary detention or imprisonment contrary to s. 9
    of the
Charter
, including a determination of whether the mass
    detentions and/or arrests are justified under s. 1;


ii.

If TPS breached the class members common law or
Charter
rights, can the court make an aggregate assessment of damages as part of the
    common issues trial?


iii.

Was TPS guilty of conduct that justifies an award of punitive damages?

4)

It
    erred in concluding that a class proceeding would be the preferable procedure
    for the resolution of the common issues.

5)

It certified two class
    proceedings in the absence of discrete Statements of Claim for either.

6.

ANALYSIS:
    TPS APPEAL OF CERTIFICATION

6.1.

Did the
    Divisional Court improperly conduct a
de novo
review of the issue of
    whether the requirements of s. 5(1) of the Act had been met, rather than
    applying an appellate standard of review to the motion judges determination
    that they had not?

[51]

TPS
    correctly submits that a motion judges certification decision is entitled to
    substantial deference:
Markson v. MBNA Canada Bank
, 2007 ONCA 334, 85
    O.R. (3d) 321, at para. 33. And TPS acknowledges that where, as here, a
    plaintiff narrows its proposed action on appeal, the reviewing court must be
    accorded some latitude. However, TPS argues that the Divisional Court went too
    far and reversed determinations made by the motion judge which were unaffected
    by the narrowing of the scope of the proposed class proceeding and fell within
    the motion judges discretion.

[52]

I
    do not agree that the Divisional Courts intervention was impermissible.  The
    determinations made by the motion judge were made in the context of the class
    action as then proposed.  The proposed class action on appeal was significantly
    narrower than the proposed class action considered by the motion judge.

[53]

Before
    the motion judge, the class included all individuals who were arrested and/or
    subjected to mass detention by police on June 26 and 27, 2010 in relation to
    the G20 summit, and released without charge or imprisoned at the Detention
    Centre.  It was not restricted to subclasses of individuals subject to mass
    detention at specified locations, as it was before the Divisional Court.

[54]

Where
    the Divisional Court reversed determinations made by the motion judge, it was
    justified in doing so because of the narrowed scope of the proposed class
    proceeding.  As I will identify in the context of the specific issues raised on
    appeal with respect to the s. 5(1) criteria, the motion judge made errors in
    principle which, while of no significance on the certification motion as framed
    before her, became significant in the context of the proposed class action as
    framed on appeal.
In these circumstances,
    deference was necessarily displaced.

6.2.

Did the Divisional Court
    err in concluding that the plaintiff had met the s. 5(1)(b) identifiable class
    criterion?

6.2.1.

TPS arguments on
    appeal

[55]

TPS
    argues that: (i) the motion judge did not err in principle in concluding that
    the plaintiff impermissibly sought to certify distinct subclasses with no
    common link; (ii) the motion judge correctly found that the class and subclass
    definitions were overly broad; and (iii) the Divisional Court identified no
    reviewable error in the motion judges conclusion that the proposed class
    definition included unclear words and phrases, and simply substituted its own
    opinion for that of the motion judge.

[56]

I would not give effect to any of these arguments.

6.2.2.

Distinct subclasses

[57]

Having regard to the breadth of the proposed class before the motion
    judge, I agree with TPS that the motion judge did not err in principle in
    concluding that the plaintiff impermissibly sought to certify distinct
    subclasses with no common link.  However, I also agree with the Divisional
    Court that the identifiable class criterion was met on appeal.

[58]

On
    appeal, the class was restricted to subclasses of individuals subject to mass
    detention at specified locations.

[59]

The
    plaintiff alleges that Superintendent Fenton was the command officer who issued
    the order in at least three of the five location-based subclasses, and that
    either he or one other officer made the order in the other two instances. Having
    regard to the applicable tests for lawful arrests and detentions that the
    Divisional Court adverted to, there was some basis in fact for finding that the
    individual officer or officers who are alleged to have given orders for mass
    detentions and arrests did so without regard to whether all of the individuals
    detained, or detained and then arrested, were implicated in the criminal
    activity with which the police were concerned.

[60]

The
    Divisional Court correctly found the commonality of an alleged command order
    being made ordering the detention of the class members without regard for the
    individual characteristics or conduct of each class member (at para. 35).

[61]

The
    existence of this central commonality linking the subclasses distinguishes this
    case from
Merck
and
Caputo
, which the motion judge relied on.

[62]

I
    agree with the Divisional Court that the combination of classes in a single
    proceeding is not prohibited.

[63]

While
    s. 5.1(b) of the Act requires that there is an identifiable class of two or
    more persons, it does not prohibit the certification of an action as a class
    proceeding where there is more than one class. In my view, it would be overly
    restrictive to interpret the Act as containing such a prohibition. I agree with
    the Divisional Court that where, as here, the proposed classes share a central commonality,
    joining multiple classes in the same class proceeding would facilitate
    recognized goals of class proceedings, and the other requirements of s. 5.1
    would be satisfied, a motion judge, in her discretion, may do so.

[64]

In
    these circumstances, it was open to the Divisional Court to determine that it
    was appropriate to join the location-based subclasses in the same class
    proceeding. It might be argued that what the Divisional Court characterizes as
    location-based subclasses are properly described as distinct classes within a
    single class proceeding, and not subclasses. However, in the circumstances,
    this distinction is without substance.

[65]

I note that TPS does not argue that the plaintiff would not
    fairly and adequately represent the interests of all of the location-based subclasses
    or that the protection of the interests of the members of such subclasses
    requires that they be separately represented. The record includes an affidavit
    from a member of each of the location-based classes: it appears it would not be
    difficult to create separate representation. Should the circumstances change,
    such that separate representation is required, the court may amend the
    certification order pursuant to s. 10(1) of the Act on the motion of a party or
    class member.

6.2.3.

Overly broad class definition

[66]

I
    reject TPS argument that the motion judge correctly concluded that the
    location-based subclass definitions should exclude individuals who engaged in
    unlawful conduct during the protests.  Her conclusion was made in the context
    of a proposed class that included more than location-based subclasses.  In the
    context of a class restricted to location-based subclasses, and some basis in
    fact that there was a single command order for group detentions and arrests at
    each location, focusing on evidence of varying individual conduct among the
    protesters unrelated to the single command order becomes an error in principle.
    I agree with the Divisional Court which wrote, at para. 29, that it is of no
    consequence whether any member of the class did, in fact, commit a criminal
    offence or a breach of the peace. The police cannot justify the detention of a
    person based on information that they either did not have, or which they did
    not rely upon, in ordering a person to be detained.

6.2.4.

Unclear words and
    phrases

[67]

After
    finding that there was a fatal flaw in the proposed class definition, the
    motion judge carefully catalogued what she considered to be other deficiencies
    in the proposed class definition, including that some words and phrases in the
    class definition were unclear.

[68]

Her
    concern was largely with respect to the definition of the subclass of
    individuals detained or arrested in the vicinity of Queens Park and the
    residual subclass. The plaintiff addressed this concern by eliminating the
    Queens Park and residual subclasses before appealing to the Divisional Court.

[69]

Therefore,
    all that remained on appeal was the motion judges concern with respect to the
    meaning of mass detention, as used in the definitions of the other
    location-based subclasses.  In each of the remaining subclass definitions,
    mass detention is qualified by in a police cordon. I agree with the
    Divisional Court that mass detention as used in these remaining definitions
    is not unclear. I have no doubt that if the only deficiency that the motion
    judge had perceived were the use of the words mass detention in these
    remaining definitions, she, like the Divisional Court, would have concluded
    that the s. 5(1)(b) criterion had been satisfied.

6.3.

Did the Divisional Court
    err in finding that three issues that the motion judge had not found were
    common issues are in fact common issues?

6.3.1.

False imprisonment/breach
    of s. 9

[70]

I
    reject TPSs argument that the Divisional Court erred in finding that this is a
    common issue. As I have indicated above, I agree with the Divisional Courts
    analysis. The motion judges conclusion that this issue was not a common issue was
    rooted in her focus on the possibility of varying individual conduct by the
    individuals who were arrested or detained which is an error in principle in the
    context of the class as cast on appeal.

[71]

Further,
    I agree with the Divisional Court that to the extent that the motion judge
    concluded that street-level officers had discretion in arresting or detaining
    protesters (and it is not clear to me that she so concluded), she impermissibly
    strayed into an assessment of the merits.

6.3.2.

Aggregate assessment
    of damages

[72]

Section
    24(1) of the Act sets out when the court may award aggregate damages:

24(1) The court may determine the aggregate or a
    part of a defendants liability to class members and give judgment accordingly
    where,

(a) monetary relief is claimed on behalf of
    some or all class members;

(b) no questions of fact or law other than
    those relating to the assessment of monetary relief remain to be determined in
    order to establish the amount of the defendants monetary liability; and

(c) the aggregate or a part of the defendants
    liability to some or all class members can reasonably be determined without
    proof by individual class members.

[73]

As
    noted above, the motion judge concluded that monetary liability could not be
    determined at trial on a global basis. The Divisional Court concluded that this
    determination should be left to the common issues judge.

[74]

I
    agree with the Divisional Court that it should be open to the common issues
    judge to consider whether aggregate damages would be an appropriate remedy, in
    whole or in part. The motion judges decision pre-dated the Supreme Courts
    decision in
Pro-Sys
. At para. 134, Rothstein J. wrote this for the
    court, in relation to legislation in British Columbia that parallels the Act:

The question of whether damages assessed in the aggregate are
    an appropriate remedy can be certified as a common issue. However, this common
    issue is only determined at the common issues trial after a finding of
    liability has been made.
The ultimate decision as to whether the aggregate
    damages provisions of the CPA should be available is one that should be left to
    the common issues trial judge
.
[Emphasis added.]

[75]

Further, this appears to be a case where the common issues judge
    may well determine that at least part of TPS liability can reasonably be
    determined without proof by individual class members. As the Divisional Court
    highlighted, s. 24(1) asks whether the aggregate
or a
    part
of the defendants liability can reasonably be determined without
    proof by class members. And, as the Divisional Court observed, it would be open
    to a common issues judge to determine that there was a base amount of damages that
    any member of the class (or subclass) was entitled to as compensation for
    breach of his or her rights. It wrote, at para. 73, that [i]t does not require
    an individual assessment of each persons situation to determine that, if
    anyone is unlawfully detained in breach of their rights at common law or under
    s. 9 of the
Charter
, a minimum award of damages in a certain amount is
    justified.

6.3.3.

Punitive
    damages

[76]

The
    motion judge did not consider whether the proposed punitive damages issue was a
    proper common issue. It is undisputed that whether a defendants conduct merits
    an award of punitive damages can be certified as a common issue. Thus, the
    question is whether the Divisional Court erred in its conclusion that, in this
    case, it is a proper common issue.

[77]

Relying on
Robinson
, TPS argues that the Divisional
    Court so erred. I reject this argument. As the Divisional Court explained,
Robinson
is very different from this case.

[78]

In
Robinson
, Perell J. considered the law of punitive damages, as set out
    in
Whiten v. Pilot Insurance Co.
, 2002 SCC 18, [2002] 1 S.C.R. 595.
    From that analysis, he concluded as follows, at para. 171:

In order to rationally determine whether punitive damages
    should be awarded and to determine the quantum of them, the court needs to know
    the quantum of compensation that will be awarded.

[79]

In
Robinson
, the common issues trial would not determine
    the defendants ultimate liability. Causation and injury to the class members
    were individual issues. Perell J. concluded that entitlement to and quantum of
    punitive damages were not a proper common issue.

[80]

Here,
    unlike in
Robinson
, the common issues dealing with alleged breaches of
    the class members rights contemplate that liability will be determined at the
    common issues trial. And the common issue proposed, and certified, is only
    whether TPS conduct justifies an award of punitive damages. The plaintiff did
    not propose as a common issue whether an award of punitive damages should be
    made against TPS and, if so, in what amount.

[81]

In
Pro-Sys
,
at para. 134, Rothstein J. makes clear that the
    failure to certify aggregate damages as a common issue does not preclude the
    trial judge from invoking s. 24(1) of the Act if considered appropriate once
    liability is found. In my view, it would also be open to the trial judge to
    consider whether, having regard to
Whiten
, an award of punitive
    damages should be made against TPS and, if so, in what amount, even though this
    issue has not been certified. The aggregate assessment of damages common issue
    contemplates that the common issues trial judge could determine at least part
    of the monetary relief owed to class members on an aggregate basis. While the Divisional
    Court conceded, at para. 72, that some limited individual examination may be
    necessary before a final award of damages could be made, it concluded, at
    para. 82:

In this case, the common issues trial judge will be armed with
    all of the necessary information, including a general understanding of the
    likely level of compensatory damages, to make an informed decision on the
    appropriateness of an award of punitive damages.

[82]

In
    my view, if liability were found, and at least part of the compensatory damages
    were assessed on an aggregate basis, it would be open to the trial judge to
    consider whether she had a sufficient measure of the compensatory damages to
    determine entitlement to and the quantum of punitive damages, consistent with
    the principles in
Whiten
, or whether this could be determined only
    after any individual assessment phase.

6.4.

Preferable procedure

[83]

TPS
    argues that the Divisional Court erred by considering the preferable procedure
    requirement in s. 5(1)(d)
de novo
and not affording deference to the
    motion judges determination that a class proceeding was not the preferable
    procedure. It says that the Divisional Court did not explain how the fact that
    the plaintiff narrowed her action justified it in doing so or what errors the
    motion judge made in her preferability analysis.

[84]

I
    reject this argument. In the circumstances, the Divisional Court was entitled
    to consider the requirement in s. 5(1)(d)
de novo
.
Lack of
    commonality was fundamental to the motion judges determination that a class
    proceeding would not be the preferable procedure for the resolution of the
    common issues (at para. 255).  The Divisional Court correctly concluded both
    that the plaintiff had satisfied the identifiable class criterion in s. 5(1)(b)
    and that the core allegation in the action was indeed a common issue. These
    conclusions radically altered the landscape in which the preferability analysis
    was conducted.

[85]

I
    agree with the Divisional Court that a class proceeding is the preferable
    procedure for the resolution of the common issues and with its reasons for so
    concluding.

[86]

On
    appeal, and without objection by the plaintiff, TPS provided an update on the
    number of individual claims that have arisen out of the G20 summit. More than
    five years after the events at issue occurred, only 16 members of the class
    have brought individual claims, and 15 of those have been resolved. It
    remains apparent that most of the affected individuals are unwilling to devote
    the time and expense necessary to seek individual relief. The access to justice
    issue identified by the Divisional Court continues to be an important one.

[87]

The
    reports regarding police conduct during the G20 summit make non-binding recommendations.
[3]
In my view, the remedies sought by the plaintiffs, which include a declaration
    that class members
Charter
rights have been violated and an award of
    damages, would be stronger instruments of behaviour modification.

6.5.

Absence of discrete statements
    of claim for two proceedings

[88]

TPS
    argues that the Divisional Courts certification of the plaintiffs claim as
    two separate proceedings in the absence of discrete statements of claim was procedurally
    unfair because it deprived TPS of the ability to make submissions on the
    certification test with reference to a pleading. It submits that the Divisional
    Courts approach was contrary to both
Brown v. Canada (Attorney General)
,
    2013 ONCA 18, 114 O.R. (3d) 355 and
Turner v. York University
,
2011 ONSC 3169 (Div. Ct.)
at paras. 4-5.

[89]

I
    reject this argument. In another class action matter, this court  recently
    affirmed that there must be some latitude on appeal for consideration of
    issues not raised at first instance provided that the other party is afforded procedural
    fairness:
Keatley Surveying Ltd. v. Teranet Inc.
, 2015 ONCA 248, 125
    O.R. (3d) 447, at para. 24.  I am not persuaded that there was any procedural
    unfairness to TPS. This case is very different from
Brown
and
Turner
.

[90]

The
    possibility of converting the single proposed class action into more than one
    class action was suggested as an alternative in the plaintiffs factum before
    the Divisional Court. TPS was not taken by surprise; it had the ability to
    respond to this suggested alternative. In these circumstances, TPS ability to
    make submissions on the certification test was unaffected by the absence of
    separate pleadings.

[91]

In
Brown
, in contrast, the motion judge conditionally certified the class
    proceeding in the absence of a statement of claim disclosing a cause of action.
    As Rosenberg J.A. wrote, at para. 44:

[I]dentification of a cause of action is fundamental. It is
    impossible for the defendant to meaningfully respond to an application for
    certification without knowing the cause of action.

[92]

Similarly,
    in
Turner
, the plaintiff sought to appeal the certification decision
    of the motion judge on the basis of a new, proposed Amended Statement of Claim
    that significantly change[d] the underpinning of the class action. The
    Divisional Court held that it was not the proper forum for a decision of first
    instance on certification and a fresh motion for certification in the court
    below was required. It accordingly stayed the appeal and directed the plaintiff
    to bring any motion to amend the Statement of Claim in the court below.
[4]


[93]

I
    endorse the approach adopted by the Divisional Court in
Turner
.
    However, in this case, as I have said, there was no procedural unfairness to
    TPS.

7.

THE
    PLAINTIFFS CROSS-APPEAL ON COSTS

7.1.

Overview

[94]

Before
    the Divisional Court, the plaintiff sought costs of the original certification
    motion in the amount of $749,267.03, including disbursements, but excluding HST.
    In response, TPS submitted that because the plaintiff significantly
    reformulated her claim on the appeal, TPS should receive $20,000 in costs
    thrown away or, alternatively, there should be no costs on the certification
    motion.

[95]

The
    Divisional Court rejected TPS argument but awarded costs in favour of the
    plaintiff in the significantly reduced amount of $125,728.03, inclusive of
    disbursements and HST.

[96]

I
    would grant leave to the plaintiff to cross-appeal the Divisional Courts cost
    award, allow the cross-appeal and award the plaintiff costs of the
    certification motion in the all-inclusive amount of $315,000.

[97]

Below,
    I first briefly outline the Divisional Courts costs reasons. Then I explain my
    conclusion that the Divisional Court erred in principle in arriving at its
    costs disposition.

7.2.

The Divisional Courts
    costs reasons

[98]

In rejecting TPS argument that the plaintiff should be denied
    costs, the Divisional Court distinguished
Keatley Surveying Ltd. v. Teranet
    Inc.
, 2014 ONSC 3690, 374 D.L.R. (4th) 529 (Div. Ct.), where another panel
    of the Divisional Court denied a plaintiff who was successful on appeal of
    costs of the certification motion. It reasoned that, unlike in
Keatley
,
    the plaintiff in this case did not completely re-formulate her case on the
    appeal. Here, the central claims against TPS remained. And unlike
Keatley
,
    this class action raised matters of public interest.

[99]

The
    Divisional Court acknowledged that the issues raised were complex. However, it
    reduced the amount of costs claimed by the plaintiff to reflect the time that
    was spent on the unsuccessful aspects of the claim as originally advanced (at para.
    10).  At paras. 4 and 5, it wrote:

The issue of plaintiffs amending their claims as the
    certification process unfolds is a problematic one, as we commented on in our
    reasons on the appeal. We do not accept the appellants position that such
    changes are of no real consequence in the assessment of a proper award of
    costs. The fact is that, had the claim been put forward originally in the form
    that it was put forward on the appeal, the decision of the motion judge might
    have been different. It follows that some amount of time that was spent on the
    certification motion was wasted because the plaintiff had cast her claim too
    broadly. There must be costs consequences associated with plaintiffs who
    overreach in that fashion

What is fair, in our view, is to recognize that the claim as
    presented before us was materially different than the claim presented before
    the certification judge.

[100]

The Divisional
    Court also noted that while TPS submitted a bill of costs on the certification
    motion in the amount of $637,835.29, it only sought the amount of $393,233.37,
    and was awarded only $223,233.37 in costs.

7.3.

Analysis

[101]

I agree with the
    Divisional Court that a reduction in the costs sought by the plaintiff is
    warranted to reflect the change in the scope of the plaintiffs claim on
    appeal. Indeed, the plaintiff acknowledges that some discount is appropriate.
    However, in my view, the Divisional Court erred in principle in two respects in
    arriving at its costs disposition.

[102]

First, in determining
    the quantum of the award, the Divisional Court relied on inapplicable
    benchmarks. Second, it failed to consider the impact of its costs award on
    access to justice, a fundamental object of the Act and one of the principles
    and factors that a court must keep in mind in arriving at its costs
    disposition:
Ruffolo v. Sun Life Assurance Co. of Canada
, 2009 ONCA
    274,
95 O.R. (3d) 709
at para. 37;
Brown
, at
    para. 58. Either of these errors in principle warrants the intervention of this
    court.

[103]

I address these
    two points in turn.

[104]

As I have noted,
    in fixing the amount of costs it awarded, the Divisional Court focused on the
    fact that TPS only sought costs on the certification motion in the amount of
    $393,233.37, and the fact that it was only awarded $223,233.37 in costs. It was
    an error in principle to use these amounts as benchmarks.

[105]

Section 31(1) of
    the Act specifically mentions the public interest as a factor to be considered
    in fixing costs in class proceedings. This court has held that where a factor mentioned
    in s. 31(1) applies, failure to consider and accord significance to such a
    factor is an error in law:
Pearson v. Inco Ltd.
(2006), 79 O.R. (3d)
    427, at para. 11;
Brown
, at para. 39. TPS in seeking costs, and the
    motion judge in awarding them, accorded significance to the public interest
    factor: the costs sought by and awarded to TPS had built-in reductions for the
    public interest factor in this action. However, in costs awards to
    representative plaintiffs, the public interest factor operates in the opposite
    fashion,
increasing
the award to the plaintiff:
Pearson
, at
    para. 8.

[106]

In addition, the
    motion judge tempered the costs she awarded to TPS to reflect access to justice
    concerns. Such a reduction is similarly not appropriate when awarding costs of
    a certification motion to a successful plaintiff.

[107]

TPS actual
    partial indemnity costs of $637,835.29 for the certification motion  and not
    the amount it actually sought or the amount awarded to it  is a measure of the
    costs that TPS could reasonably expect to pay and the reasonableness of the
    costs sought by the plaintiff in this undisputedly complex action. That amount
    is an appropriate benchmark.

[108]

I turn to the
    second point.

[109]

In
Pearson
,
    at para. 13, and
Brown
, at para. 58, this court provided a list of
    nine principles and factors to guide the award of costs on a certification
    motion. One of those is whether the appellants claim substantially evolved
    from the claim brought before the motion judge. Another is that a fundamental
    objective of the Act is to provide enhanced access to justice.

[110]

Respectfully, in
    my view the Divisional Court erred by reducing the costs it awarded to the
    plaintiff to reflect the evolution of her claim without considering the effect
    on the legislative goal to access to justice of doing so.
Ruffolo
, at
    para. 37, makes clear that in arriving at its costs dispositions, the court
    must
always
keep in mind the legislative goals of access to justice,
    behaviour modification and judicial economy. I accept the plaintiffs
    submission that, left untouched, the Divisional Courts costs award would have
    a chilling effect on public interest class actions and would substantially
    hinder access to justice.

[111]

Bearing the
    principles and factors outlined in
Pearson
,
Brown
and
Ruffolo
in mind, in my view a fair and reasonable award in favour of the plaintiff is
    the all-inclusive amount of $315,000.

[112]

I have
    discounted the costs that she seeks to reflect that her claim substantially
    evolved from the claim before the motion judge. The class proceeding as framed
    before the motion judge was quite different from that before the Divisional
    Court. This is apparent from the descriptions, at sections 3.1 and 4.1 of these
    reasons, of the class proceeding as framed before the motion judge and the
    Divisional Court and from a comparison of Schedules A and B to Schedules C and
    D of these reasons.

[113]

However, as the
    plaintiff submits, and as the Divisional Court observed, the central claims
    against TPS remained intact. Also, I have taken into account the plaintiffs
    submission that two of the three defendants she released on appeal had only
    been added to the claim because the motion judge held, at an earlier carriage
    motion, that it would be in the best interests of the class to do so.
[5]


[114]

While
    the discount is less than would otherwise be the case because the action raises
    a very important issue of public interest, it is nonetheless meaningful.  If it
    were not, it would be unfair to TPS, which was faced with a significantly
    different claim on appeal. However, I am satisfied that the discount is not
    such that it will adversely affect the object of the Act of providing enhanced
    access to justice.

[115]

The plaintiff also argued that the Divisional Court erred by
    failing to consider that the proceeding raised novel points of law. For
    example, she says, never before had it been alleged that a police organization
    had a duty of care for its overall planning of large-scale police operations.
    Moreover, she submits, this is the first group arrest action in common law
    Canada.

[116]

The motion judge
    rejected the plaintiffs argument that the proceeding raised novel points of
    law and that accordingly no costs should be awarded against her. The motion
    judge characterized the proceeding as entailing the application of settled
    negligence law. Further, she noted that the plaintiff had relied on mass
    detention/arrest class actions certified in Quebec and Ontario as justification
    for certification. She wrote, at para. 16, If this argument is accepted then
    every class action with a subject matter that has never been certified before
    would be novel.

[117]

As the plaintiff submits, whether a proceeding raises a novel
    point of law is one of the three factors mentioned in s. 31(1) of the Act and a
    court must consider and accord significance to it in determining costs.
In my view, whether a proceeding is a novel point of
    law is an important determination when a plaintiff is unsuccessful in a
    certification motion. It may insulate her from a costs award. However, where,
    as in this case, the plaintiff is ultimately successful on the certification
    motion in an undisputedly complex proceeding, the novel point of law factor
    is subsumed in the assessment of the complexity of the issues. In arriving at
    my costs disposition, I have accepted that this is a complex proceeding.

8. DISPOSITION AND COSTS OF THE APPEAL AND CROSS-APPEAL

[118]

I would dismiss the appeal, grant leave to the plaintiff to
    cross-appeal the costs awarded by the Divisional Court, allow the cross-appeal
    and award all-inclusive costs on the certification motion in the amount of $315,000
    to the plaintiff.

[119]

As the plaintiff
    was successful on the appeal and cross-appeal, I would award her costs of both,
    on a partial indemnity scale. Accordingly, the Law Foundation of Ontario is not
    entitled to notice or to make submissions in respect of costs. Bearing the
    principles and factors outlined in
Pearson
,
Brown
and
Ruffolo
in mind, $65,000 inclusive of disbursements and HST is in my view a fair and
    reasonable award. It is the amount of TPS all-inclusive partial indemnity
    costs on the appeal and cross-appeal. While less than the $116,789.16 the
    plaintiff sought, it is a significant award.

Released: AH  APR 06 2016

Alexandra Hoy
    A.C.J.O.

I agree G. Pardu
    J.A.

I agree L.B Roberts
    J.A.





SCHEDULE A

The Proposed Class Definition and Subclasses Before the Motion
    Judge

Proposed
    Class

Those
    individuals in the City of Toronto who were arrested and/or subjected to mass
    detention by police, on June 26 and 27, 2010, in relation to the G20 Summit,
    and were:

(a) released without charge; and/or

(b)
    imprisoned in the Eastern Avenue Detention Centre.

Location
    Subclasses

Putative
    class members who were arrested or subjected to mass detention by police as
    follows:

(1) in a police cordon in the vicinity of the
    intersection of Queen Street West and Spadina Avenue on the afternoon of June
    27, 2010, and eventually released without charge (the "Queen and Spadina
    Subclass");

(2) in a police cordon in the vicinity of the
    Hotel Novotel Toronto Centre on the Esplanade on the evening of June 26, 2010,
    and eventually released without charge (the "Esplanade Subclass");

(3) in a police
    cordon in the vicinity of the Eastern Avenue Detention Centre on the morning of
    June 27, 2010, and eventually released without charge (the "Eastern Avenue
    Subclass");

(4) in a police cordon in the vicinity of the
    intersection of Queen Street West and Noble Street on June 27, 2010, and
    eventually released without charge (the "Parkdale Subclass");

(5) during mass arrests in the vicinity of
    Queen's Park on the afternoon of June 26, 2010, and released without charge or
    charged with unlawful assembly and/or any other offence related to a failure to
    disperse from the vicinity of Queen's Park; (the "Queen's Park
    Subclass");

(6) at the University
    of Toronto Graduate Students' Union Gymnasium on the morning of June 27, 2010
    (the "Gymnasium Subclass"); and

Residual
    Subclass

Individuals
    who were arrested in relation to the G20 Summit at locations in Toronto (other
    than those listed above) for whom the defendants have records relating to the
    arrest and who were eventually released without charge.

Detention
    Centre Subclass

An
    overlapping subclass consisting of all putative class members who were
    arrested and imprisoned in the Eastern Avenue Detention Centre beginning on
    June 26 or 27, 2010 (the "Detention Centre Subclass").




SCHEDULE B

The Proposed
    Common Issues Before the Motion Judge

Systemic
    Wrongdoing

1.1

In
    their planning, operation, or management of G20 Summit security, did the
    Defendants owe a duty of care to the class members?

Re
    Residual Subclass

1.2

Did
    commanding, supervising, or senior officers under the authority of the Toronto
    Police Service order or authorize officers to arrest individuals on grounds
    such as the failure to submit to a search or the possession of a bandana or
    other protest-related items?

1.3

Did
    commanding, supervising, or senior officers under the authority of the Toronto
    Police Service in the early evening of Saturday, June 26, 2010, order or
    authorize officers to arrest any demonstrators remaining on the streets?

1.4

Did
    the Defendants fail to ensure that officers received balanced and adequate
    training regarding the protection of
Charter

rights?

Re Location-Based Subclasses and
    Residual Subclass

1.5

Did
    commanding, supervising, or senior officers under the authority of the
    Defendants adopt or permit a strategy to "take back the streets"
    after the vandalism on Saturday through a general round up of peaceful
    demonstrators (including by the use of mass detentions/arrests as a method of
    crowd control or an improper reliance on the breach of peace power)?

1.6

Did
    the Defendants fail to have sufficient policies and practices in place for the protection
    of demonstrators'
Charter

rights, or otherwise
    fail to take reasonable steps to ensure the protection of the class members'
Charter

rights?

Abuse of
    Public Office

2.1     Did
    commanding, supervising, or senior officers under the authority of the
    Defendants know that the decisions or orders referred to in (a) and (b) below
    were unlawful, or were reckless as to their unlawfulness (if said orders or
    decisions were in fact made)?

(a)
The decisions and
    orders referred to in paragraphs 1.2, 1.3 and 1.5 above; and

(b)
The
    mass arrest/detention orders made in relation to the location-based subclasses?

2.2     Did
    commanding, supervising, or senior officers under the authority of the
    Defendants know that the decisions or orders referred to in paragraphs 2.1 (a)
    and (b) above would result in harm to the class members, or were reckless or
    willfully blind as to the possibility that harm would occur (if said orders or
    decisions were in fact made)?

The
    Mass-Detention and Mass-Arrest Subclasses

(i.e. Queen and Spadina, Esplanade, Eastern Avenue,
    Parkdale, Queen's Park, and Gymnasium subclasses)

3.       Did each
    mass detention and/or arrest (or the prolonged duration thereof) constitute (a)
    false imprisonment of the respective subclass members and/or (b) arbitrary
    detention or imprisonment contrary to section 9 of the
Charter
?

4.       If the mass
    detention or arrest of a subclass was unlawful, did the Defendants' conduct
    therefore also amount to (a) assault and/or battery; (b) trespass; and/or (c) a
    breach of section 8 of the
Charter

(i.e. unreasonable
    search and seizure)?

5.       Did the
    Defendants infringe the respective subclass members' rights under section 2 of
    the
Charter

(e.g. freedoms of
    expression, peaceful assembly, and/or association)?

6.       Did the
    Defendants infringe the respective subclass members' rights under section 7 of
    the
Charter

(i.e. right to life,
    liberty, and security of the person)?

7.       Did
    the Defendants infringe the respective subclass members' rights under section
    10 of the
Charter

(i.e. the right upon arrest or detention to
    be informed promptly of the reasons therefor, to retain and instruct counsel
    without delay, and to be informed of that right)?

8.       Did the
    Defendants discriminate against the Gymnasium Subclass members under Ontarios
Human Rights Code

by targeting them for
    arrest or negative treatment based on prohibited grounds, including the
    perception that most or all of the subclass members were Québécois?

The
    Overlapping Detention Centre Subclass

9.

Did
    the conditions or treatment of subclass members within the Eastern Avenue
    Detention Centre amount to cruel and unusual treatment or punishment under
    section 12 of the
Charter
?

10.     Did the
    Defendants infringe the respective subclass members' rights under section 10(b)
    of the
Charter

(i.e. the right to
    retain and instruct counsel without delay and to be informed of that right)?

11.     Did the
    Defendants detain the subclass members for an excessive and/or unnecessarily
    long time, such that their ongoing detention constituted false imprisonment or
    arbitrary detention contrary to section 9 of the
Charter
?

Charter
    Section 1

12.      Were any
    infringements of the
Charter

justified and
    allowable under section 1?

Remedies
    and Damages

13.     If the
    Defendants breached the class members' common law or
Charter

rights, can the Court make an aggregate
    assessment of damages as part of the common issues trial?

14.     Were the
    Defendants guilty of conduct that justifies an award of punitive damages?

15.     Are
    declarations regarding the lawfulness of certain police actions and/or tactics
    during the G20 Summit warranted?

16.     Are orders
    requiring the Defendants to expunge certain records warranted?


SCHEDULE C

The
    Proposed Class Before the Divisional Court

The
    proposed class members for this action include those individuals who were:

(a)
    Arrested or subjected to mass detention in a police cordon in the vicinity of
    the intersection of Queen Street West and Spadina Avenue on the afternoon of
    June 27, 2010, and eventually released without charge (the Queen and Spadina

Subclass);

(b)
    Arrested or subjected to mass detention in a police cordon in the vicinity of
    the Hotel Novotel Toronto Centre on the Esplanade on the evening of June 26,
    2010, and eventually released without charge (the Esplanade Subclass);

(c)
    Arrested or subjected to mass detention in a police cordon in the vicinity of
    the Eastern Avenue Detention Centre on the morning of June 27, 2010, and
    eventually released without charge (the Eastern Avenue Subclass);

(d)
    Arrested or subjected to mass detention in a police cordon in the vicinity of
    the intersection of Queen Street West and Noble Street on June 27, 2010, and
    eventually released without charge (the Parkdale Subclass);

(e)
    Arrested at the University of Toronto Graduate Students Union Gymnasium on the
    morning of June 27, 2010 (the Gymnasium Subclass); and

(f)
    Arrested and imprisoned in the Eastern Avenue Detention Centre beginning on
    June 26 or 27, 2010 (the Detention Centre Subclass).




SCHEDULE D

The Proposed Commons Issues Before the Divisional Court

The
    five location-based mass-detention and mass-arrest subclasses:

(i.e.
    Queen and Spadina, Esplanade, Eastern Avenue, Parkdale and Gymnasium

subclasses)

1.
    Did each mass detention and/or arrest (or the prolonged duration thereof)
    constitute (a) false imprisonment of the respective subclass members and/or (b)
    arbitrary detention or imprisonment contrary to section 9 of the Charter?

2.
    Did the Defendant discriminate against the Gymnasium Subclass members under
    Ontarios Human Rights Code by targeting them for arrest or negative treatment
    based on prohibited grounds, including the perception that most or all of the
    subclass members were Québécois?

Detention
    Centre Subclass:

3.
    Did the conditions or treatment of subclass members within the Eastern Avenue
    Detention Centre amount to cruel and unusual treatment or punishment under
    section 12 of the Charter?

4.
    Did the Defendant owe a duty of care to the Detention Centre Subclass members,
    and if yes, did the conditions and/or treatment of detainees in the Eastern
    Avenue Detention Centre amount to a breach of that duty of care?

5.
    Did the Defendant infringe the respective subclass members rights under
    section 10(b) of the Charter (i.e. the right to retain and instruct counsel
    without delay and to be informed of that right)?

6.
    Did the Defendant detain the subclass members for an excessive and/or
    unnecessarily long time, such that their ongoing detention constituted false
    imprisonment or arbitrary detention contrary to section 9 of the Charter?

Charter
    Section 1:

7.
    Were any infringements of the Charter justified and allowable under section 1?

Remedies
    and damages:

8.
    If the Defendant breached the class members common law or Charter rights, can
    the Court make an aggregate assessment of damages as part of the common issues
    trial?

9.
    Was the Defendant guilty of conduct that justifies an award of punitive
    damages?

10.
    Are declarations regarding the lawfulness of certain police actions and/or
    tactics during the G20 Summit warranted?

11. Are orders requiring the Defendant to expunge certain
    records warranted?




SCHEDULE E

The Certified Common Issues

For the location-based subclasses:

1.

Did
    each mass detention and/or arrest (or the prolonged duration thereof)
    constitute (a) false imprisonment of the respective subclass members at common
    law and/or (b) arbitrary detention or imprisonment contrary to s. 9 of the
    Charter including a determination whether the mass detention and/or arrests are
    justified under s. 1?

2.

If
    the Defendant breached the class members common law or Charter rights, can the
    Court make an aggregate assessment of damages as part of the common issues
    trial?

3.

Was
    the Defendant guilty of conduct that justifies an award of punitive damages?

4.

Are
    declarations regarding the lawfulness of certain police actions and/or tactics
    during the G20 Summit warranted?

5.

Are
    orders requiring the Defendant to expunge stipulated records warranted?

For the Detention Centre class:

1.

Did
    the conditions or treatment of the class members within the Eastern Avenue
    Detention Centre amount to cruel and unusual treatment or punishment under s.
    12 of the
Charter
?

2.

Did
    the Defendant owe a duty of care to the Detention Centre class members, and if
    yes, did the conditions and/or treatment of detainees in the Eastern Avenue
    Detention Centre amount to a breach of that duty of care?

3.

Did
    the Defendant infringe the respective class members rights under s. 10(b) of
    the
Charter
(i.e. the right to retain and instruct counsel without delay and to be informed
    of that right)?

4.

Did
    the Defendant detain the class members for an excessive and/or unnecessarily
    long time, such that their ongoing detention constituted false imprisonment or
    arbitrary detention contrary to s. 9 of the
Charter
?

5.

If
    the Defendant breached the class members common law or
Charter
rights, can the Court make an aggregate assessment of damages as part of the
    common issues trial?

6.

Was
    the Defendant guilty of conduct that justifies an award of punitive damages?





[1]
See Hon. John W. Morden, Independent Civilian Review into Matters Relating to
    the G20 Summit (Toronto: 29 June 2012), at p. 33.



[2]
By the time of the Divisional Court appeal, the Queens Park subclass was no
    longer part of the proposed action.



[3]
The reports in the record were the Independent Civilian Review into Matters
    Relating to the G20 Summit (Toronto: 29 June 2012) authored by the Honourable
    John W. Morden, and the Toronto Police Service After-Action Review (Toronto:
    Toronto Police Service, June 2011).



[4]
The plaintiffs motion for leave to amend his Statement of Claim was
    subsequently denied: 2011 ONSC 6151. He then proceeded with his appeal of the
    motion judges denial of certification on the basis of the original record
    before the motion judge. The Divisional Court dismissed the appeal: 2012 ONSC
    4272,
40 C.P.C. (7th) 156
.



[5]
See
McQuade v. Toronto Police Services Board
, 2011 ONSC 5086, at para.
    31.


