Executive Summary: Key Legal and Evidentiary Issues

• Issue estoppel and the doctrine of functus officio led the Federal Court to conclude that Ms. Berenguer could not bring a second certification motion after her first was dismissed for failing to meet the preferable procedure criterion.
   
• Estoppel extends to matters necessarily determined in the earlier proceeding, even if not explicitly decided, which defeated her claim that a new "remedial question" remained open.
   
• Nothing in Sanis Health Inc. v. British Columbia, 2024 SCC 40, creates a continuing duty to class members that can override issue estoppel after certification is refused.
   
• Rules 385 and 334.2 of the Federal Courts Rules, correctly interpreted, do not override the doctrine of issue estoppel.
   
• Her fresh evidence, concerning proposed legislative changes and an increased complaint backlog at the Canadian Transportation Agency, failed the Palmer criteria for admission.
   
• Finality in the judicial system outweighed her argument that potential injustice to class members should be the most important factor in the court's discretion.
   

Facts of the case

Dora Berenguer commenced a proposed class action against SATA Internacional – Azores Airlines, S.A. (SATA) in the Federal Court. In 2021, the Federal Court struck her statement of claim for failing to disclose a reasonable cause of action and dismissed her certification motion for failure to meet the preferable procedure criterion (2021 FC 394). On appeal, the Federal Court of Appeal set aside the order striking the claim but upheld the dismissal of the certification motion, noting that she "tendered no evidence on the question of preferability" (2023 FCA 176). The Supreme Court of Canada refused leave to appeal on April 11, 2024, and the Federal Court of Appeal also dismissed her motion to reconsider its decision.

Ms. Berenguer then brought a motion asking the Federal Court to determine what rights she had, if any, to continue the proposed class action through a fresh certification motion. By order dated June 3, 2025 (2025 FC 992, per Lafrenière J.), the Federal Court dismissed that motion. Applying the doctrines of functus officio and res judicata in the form of issue estoppel, it found it had no remedial jurisdiction to reopen the certification motion and declined to exercise its discretion to set aside issue estoppel. She appealed, and also moved to adduce new evidence on the appeal.

Policy and legislative provisions at issue

The original certification motion failed under Rule 334.16(1)(d) of the Federal Courts Rules, S.O.R./98-106, which sets out the preferable procedure criterion. On her later motion, Ms. Berenguer relied on Rules 385(1) and 334.2 as a basis for the Federal Court's continuing jurisdiction to entertain a second certification motion.

The appeal also turned on the three conditions for issue estoppel set out in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at paragraph 25, the first being that the same question was previously decided. Standards of review came from Housen v. Nikolaisen, 2002 SCC 33: correctness for pure and extricable questions of law, and palpable and overriding error for findings of fact and factually suffused findings of mixed fact and law.

Reasoning and analysis

The court first dismissed the motion to admit new evidence. Although the evidence was not available in the 2019–21 period, it did not satisfy the criteria in Palmer v. R., [1980] 1 S.C.R. 759, and admitting it would not be fair, just, or in the interests of justice (Barendregt v. Grebliunas, 2022 SCC 22). The panel viewed the motion as an attempt to remedy the lack of evidence originally presented and, five years after the Certification Decision, to reopen the proceeding based on recent proposed (not actual) legislative changes and an increase in the CTA's complaint backlog.

On the first ground of appeal, Ms. Berenguer argued that the remedial question of whether she should "be permitted to rectify the evidentiary deficiencies in the CTA's complaint handling capacity" was a new question, not foreclosed by the reconsideration order. The court found no merit in this. She had relied on Danyluk's requirement that a question be "distinctly put in issue and directly determined," but ignored the Supreme Court's further statement that estoppel extends to material facts and conclusions of mixed fact and law that were necessarily, even if not explicitly, determined. Preferable procedure and the evidence required to establish it were clearly and necessarily in issue before the Federal Court.

The panel also rejected the argument that the Federal Court erred by not referring to Sanis. Her reliance on the Supreme Court's reference to a certifying court's supervisory role in protecting class members (Sanis at para. 69) took the phrase out of context. According to the panel, Sanis did not establish a new framework for a certifying court's role after certification is refused, nor suggest that a continuing duty to class members in a failed proceeding can overcome issue estoppel. Citing Buffalo v. Samson Cree, 2010 FCA 165, the court held that the Federal Court was not required at the certification hearing to consider adjourning so she could "cooper up" her motion, nor was it required to grant the current motion. The court found no error in the Federal Court's analysis of Rules 385 and 334.2 and no conflation of functus officio with issue estoppel.

On the second ground, the Federal Court had correctly recognized that issue estoppel may be set aside in the event of an appeal, a material change in circumstances, or new evidence (Canada v. Greenwood, 2024 FCA 22 at para. 42). It thoroughly considered her arguments and evidence, including the effect of the appeal and reconsideration decisions and subsequent legislative and evidentiary changes in the CTA's dispute resolution process. The panel found no palpable and overriding error. Her insistence that potential injustice to class members should be the most important factor did not overcome the fundamental importance of finality, and accepting her arguments would effectively reduce the doctrine of finality to naught.

Ruling and overall outcome

The Federal Court of Appeal (Stratas, Heckman, and Walker JJ.A.), in reasons delivered from the bench by Walker J.A. at Vancouver on September 16, 2026, dismissed both the motion to admit fresh evidence and the appeal, seeing no basis to intervene in the Federal Court's order. SATA was successful. No costs were awarded, as the proceedings were related to the earlier certification proceedings, and no monetary amount was ordered in either party's favour.