Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs alleged systemic police misconduct by the RCMP during enforcement of a logging injunction at Fairy Creek.

• Key claims involved breaches of Charter rights and torts such as false imprisonment, assault, and trespass.

• Plaintiffs sought certification of a class action on behalf of individuals allegedly affected by RCMP exclusion zones and arrests.

• Defendants challenged the overbreadth, subjectivity, and lack of commonality in the proposed class definitions.

• The court found no sufficient evidentiary basis to support systemic policies or common issues across the proposed class.

• Certification was denied, halting the class action before it could proceed to trial.

Facts and outcome of the case

Arvin Singh Dang and Kristy Morgan brought a proposed class action lawsuit against the Attorney General of Canada and the Minister of Public Safety and Solicitor General of British Columbia. The dispute centered on the enforcement actions taken by the RCMP during anti-logging protests at Fairy Creek on Vancouver Island. The underlying injunction, originally granted in April 2021 to Teal Cedar Products Ltd., allowed the RCMP to enforce restrictions against protestors obstructing logging operations in Tree Farm Licence 46.

The plaintiffs alleged that the RCMP’s enforcement practices, including the establishment of exclusion zones and a policy of mass detentions followed by releases (dubbed "catch and release"), were unlawful and violated numerous Charter rights. They claimed breaches of freedom of expression, assembly, liberty, and protection from unreasonable search and detention. The plaintiffs also pleaded common law torts including false imprisonment, assault and battery, and trespass. They sought certification of a class action under the Class Proceedings Act on behalf of two proposed subclasses: individuals impeded or detained in exclusion zones and those detained without subsequent charges under the alleged catch-and-release policy.

The certification application was heard in May and June 2024. The plaintiffs presented affidavits detailing personal experiences of detention, restricted media access, searches, and physical confrontation. They also alleged systemic policies by the RCMP across multiple zones and time periods. The defendants, however, argued that the class definitions were too broad, vague, and included individuals with no viable legal claims. They also contended that enforcement decisions varied significantly depending on operational circumstances and that no unified policy or systemic misconduct could be proven on a class-wide basis.

Justice Giaschi agreed with the defendants and dismissed the certification application. The court found that the class definitions were overinclusive and failed to establish a rational connection to common legal issues. It emphasized that police conduct and protestor interactions at Fairy Creek varied greatly over time, geography, and individual circumstances, making a common adjudication impractical. Additionally, the court determined there was insufficient evidence of an actual RCMP “policy” applicable across all incidents and no viable path to resolve the alleged Charter and tort claims on a collective basis.

No damages were awarded, as the case was dismissed at the certification stage. There was also no mention of costs being ordered in the decision. As a result, the case did not proceed to trial and was concluded with the dismissal of the plaintiffs’ class action application.