Executive Summary: Key Legal and Evidentiary Issues

• The Court of Appeal for British Columbia allowed the appeal from a chambers judge's dismissal of a class certification application arising from RCMP enforcement of the Fairy Creek logging injunction.
   
• Affidavits sworn for a related Media Access application were found admissible, while affidavits sworn for a separate Extension application were properly excluded because the Attorney General had taken no position on that application.
   
• Findings made by Thompson J. in the Media Access decision were held to carry evidentiary weight under the "some basis in fact" standard, following the Supreme Court of Canada's reasoning in British Columbia (Attorney General) v. Malik.
   
• An identifiable class was found to exist once the definition was modified to exclude individuals convicted of contempt of court for breaching the injunction.
   
• Charter issues concerning the alleged Exclusion Zone Policy were found to raise common issues, whereas the Catch-and-Release Policy allegations lacked sufficient evidentiary support.
   
• Weighing the available avenues for redress, the court concluded that a class proceeding is the preferable procedure for resolving the common issues and remitted the certification application to the Supreme Court of British Columbia.
   

Facts of the case

Between 2021 and 2023, Teal Cedar Products Ltd. conducted logging in the Fairy Creek watershed under a tree farm licence, prompting sustained protests. Teal obtained an injunction from the Supreme Court of British Columbia authorizing RCMP enforcement, including arrests of individuals contravening the order, while expressly preserving public access to the injunction area and the right to peaceful, lawful protest. The injunction was in force from April 1, 2021, to September 26, 2023. Enforcement led to more than a thousand arrests and hundreds of contempt convictions, and hundreds of individuals were arrested without subsequent charges. The appellants, Arvin Singh Dang and Kristy Morgan, commenced an action alleging that the RCMP wrongfully barred them from the injunction area in violation of their Charter rights; Dang further alleged he was arrested without lawful cause and later released. They sought certification of a class proceeding on behalf of persons whose Charter rights were infringed through RCMP enforcement measures. A chambers judge dismissed the certification application, concluding that the appellants had not satisfied the identifiable class, common issues, and preferable procedure requirements under the Class Proceedings Act. The appellants appealed, arguing that the judge erred by excluding admissible evidence and in his approach to the certification test.

Policy and legislative provisions at issue

The certification analysis turned on section 4(1) of the Class Proceedings Act, R.S.B.C. 1996, c. 50, which requires that a proceeding disclose a cause of action, identify a class of two or more persons, raise common issues, establish that a class proceeding is the preferable procedure, and identify a suitable representative plaintiff. Section 4(2) sets out the factors relevant to preferability, including whether common questions predominate over individual ones and whether other means of resolving the claims are less practical or efficient. The appellants' claim invoked sections 2, 7, 8, and 9 of the Canadian Charter of Rights and Freedoms, along with the remedial provision in section 24(1), and section 29(1) of the Class Proceedings Act concerning aggregate damages awards. The appellants pleaded that the RCMP's conduct was governed by two internal policies: an "Exclusion Zone Policy" restricting access to the injunction area, and a "Catch-and-Release Policy" involving detentions and arrests without charges.

Reasoning and analysis

Justice Gomery, writing for the court, addressed five issues. On evidence, the court held that the chambers judge erred in excluding affidavits sworn for the Media Access application, since the Attorney General had fully participated in that proceeding and faced no real risk of prejudice, but the judge correctly excluded affidavits from the Extension application, where the Attorney General had taken no position. Applying the Supreme Court of Canada's decision in Malik, the court found that Thompson J.'s findings from the Media Access decision were entitled to evidentiary weight in assessing whether the certification requirements had "some basis in fact." On the identifiable class requirement, the court held that the presence of individuals with no viable claim due to their own circumstances, such as those convicted of contempt, does not render a class overbroad; excluding that subset cured the defect. On common issues, the court found that allegations concerning the Exclusion Zone Policy raised genuine common issues capable of advancing every class member's claim, rejecting the judge's reasoning that Charter claims are inherently too individualized to be litigated collectively. However, the court agreed that the Catch-and-Release Policy allegations lacked sufficient evidentiary support, noting that the RCMP's own affidavit evidence undermined the existence of any such command policy. On preferability, the court found that the chambers judge's brief reasoning was not entitled to deference because it rested on the erroneous conclusion that no common issues existed; weighing individual civil actions, complaints to the RCMP's Civilian Review and Complaints Commission, and a class proceeding against the goals of judicial economy, behaviour modification, and access to justice, the court concluded that a class proceeding was preferable.

Ruling and overall outcome

The Court of Appeal allowed the appeal brought by Dang and Morgan, finding that the chambers judge erred in his evidentiary rulings and in his assessment of the identifiable class, common issues, and preferable procedure requirements under the Class Proceedings Act. The certification application was remitted to the Supreme Court of British Columbia on the basis that a cause of action is disclosed, an identifiable class exists (excluding persons convicted of contempt of court), specified common issues concerning the Exclusion Zone Policy and associated Charter breaches are established, additional common issues on damages may be considered, and a class proceeding is the preferable procedure. The question of whether Dang and Morgan are appropriate representative plaintiffs was remitted to the court below for determination, as this issue had not been addressed by the parties or the chambers judge. No monetary damages or costs award was determined at this stage; the court ordered that the appeal be allowed without costs, pursuant to section 37(1) of the Class Proceedings Act.