Hamm v Canada (Attorney General), 2020 ABQB 765

Court of Queen’s Bench of Alberta Citation: Hamm v Canada (Attorney General), 2020 ABQB 765 Date: 20201208 Docket: 1603 18759 Registry: Edmonton Between: Matthew Christopher Hamm, Shawn Curtis Keepness and Taylor James Tobin Respondents (Plaintiffs) - and - The Attorney General of Canada Appellant (Defendant) _______________________________________________________ Reasons for Decision of the

Honourable Madam Justice Susan L. Bercov _______________________________________________________ I Introduction [ 1 ] The central issue in this appeal of a Master’s decision is when should an individual action be stayed where there are certified class actions involving the subject matter of the individual action. [ 2 ] The Appellant, The Attorney General of Canada (“Canada”), brought an application before the Master for a stay of the Respondents’ individual action (“ Hamm ”) in the face of two ongoing certified national class actions that Canada argues overlaps with Hamm . [ 3 ] The Master found that the Respondents’

summary judgment application before the Court of Appeal should be allowed to proceed and adjourned the balance of Canada’s application for a stay pending the outcome of the appeal. Canada appeals the Master’s decision arguing that the Master erred in adjourning the stay application to allow the

summary judgment appeal to be heard. Canada seeks a stay of Hamm pending the final disposition of two certified class actions in Ontario. [ 4 ] For the reasons that follow I conclude that Hamm should be stayed until the conclusion of the class actions or the Respondents successfully apply to opt-out of the class actions. II Standard of Review [ 5 ] The parties agree that the standard of review on appeal from a Master is correctness and that the hearing is de novo .

III Background History [ 6 ] Hamm originates from a habeas corpus decision of Justice Veit in August 2016: Hamm v Attorney General of Canada (Edmonton Institution) , 2016 ABQB 440 . In June 2016 the Respondents were placed in administrative segregation for 43 days. They brought an application for habeas corpus . Justice Veit found that the decision to place and keep the Respondents in administrative segregation was unreasonable and breached the duty of procedural fairness.

She ordered the Respondents released back to the general population. [ 7 ] In October 2016 the Respondents filed a Statement of Claim against Canada. The Amended Statement of Claim relies heavily on the findings of Justice Veit that the decision to place and keep the Respondents in administrative segregation was unreasonable and procedurally unfair and, therefore, unlawful. The Respondents allege the unlawful segregation breached their common law and constitutional rights.

The Amended Statement of Claim specifically pleads: the tort of false arrest; the tort of false imprisonment; and breaches of sections 7 and 12 of the Charter of Rights and Freedoms . The Respondents seek general damages, Charter damages, aggravated and punitive damages. [ 8 ] After the Amended Statement of Claim was filed, the Ontario Superior Court certified two national class actions, dealing with administrative segregation in federal institutions, to proceed as class actions. Canada consented to certification.

Canada is the only defendant in both class actions. [ 9 ] The first-class action (“ Brazeau ”) was certified December 12, 2016: Brazeau v Attorney General (Canada) , 2016 ONSC 7836 .

The second-class action (“ Reddock ”) was certified June 21, 2018: Reddock v Canada (Attorney General) , 2018 ONSC 3914 . [ 10 ] In Brazeau , the class consists of offenders in federal custody, diagnosed with or suffering from serious metal illness, who were placed in administrative segregation. [ 11 ] In Reddock the class consists of all offenders in federal custody involuntarily subjected to prolonged administrative segregation (defined as at least 15 consecutive days). The members of the Brazeau class are excluded from the Reddock class. [ 12 ] The common issues certified in both Brazeau and Reddick are:

a) Whether by operation and management of federal correctional institutions Canada breached the class members’ rights under sections 7 , 9 , and 12 of the Charter ?

b) If so, whether Canada’s actions are saved by

section 1 of the Charter ?

c) If not, whether damages are available to class members under

section 24 of the Charter ? and

d) If yes, whether the Court can make an aggregate assessment of the damages suffered by all class members as a part of the common issues trial? [ 13 ] In Reddock , three additional common issues were certified:

a) Whether by operation and management of federal correctional institutions Canada breached the class members’ rights under

section 11(

h) of the Charter ?

b) Does Canada’s conduct arising from a breach of any of the provisions of the Charter justify an award of punitive damages? and

c) If so, in what amount? [ 14 ]

Summary judgment applications were successfully brought in both Reddock and Brazeau. [ 15 ] In Brazeau v Attorney General (Canada), 2019 ONSC 1888 , the Ontario Superior Court found:

a) Without prejudice to any individual class member’s claim at an individual issues trial to assert that his or her unique circumstances was contrary to

section 7 of the Charter , including placement in administrative segregation for less than thirty days, there was a systemic s 7 breach by the absence of an adequate review process for involuntary placements in administrative segregation for more than thirty days and voluntarily placements for more than sixty days. The breach of s 7 of the Charter is not saved by

section 1 ;

b) Canada did not breach s 9 of the Charter ;

c) Without prejudice to any individual class member’s claim at an individual issues trial to assert that his or her treatment was contrary to

section 12 of the Charter , including placement in administrative segregation for less than thirty days, there was a systemic s 12 breach for involuntary placements in administrative segregation for more than thirty days and voluntarily placements for more than sixty days. The breach of s 12 of the Charter is not saved by

section 1 ;

d) That an aggregate assessment of Charter damages suffered by the whole class for the sections 7 and 12 breaches is $20 million to be distributed in the form of additional mental health or program resources for changes to penal institutions; and

e) Canada is not liable for punitive damages on a class-wide basis but may be liable for punitive damages after the Charter damages are determined at the individual issues trials. [ 16 ] In Reddock v Canada (Attorney General) , 2019 ONSC 5053 , the Ontario Superior Court found:

a) By the operation and management of federal institutions Canada breached class member’s rights under s 7 of the Charter by the absence of an adequate review process for placements in administrative segregation for more than fifteen days;

b) By operation and management of federal institutions, Canada breached class member’s rights under s 12 of the Charter by placing inmates in administrative segregation for more than fifteen days;

c) The ss 7 and 12 breaches are not saved by s 1 of the Charter ;

d) Canada did not breach class member’s rights under s 11(

h) of the Charter ;

e) It has been proven on a class-wide basis that Canada owes a duty of care in its operation and management of the federal institutions, that Canada breached the duty of care, and that each class member suffered a base level of compensable damages;

f) A partial aggregate assessment for Charter damages and systemic negligence damages is $20 million to be distributed to class members;

g) The damages award is without prejudice to the ability of class members to claim at an individual issues trial: (

a) punitive damages, and (

b) additional Charter damages for the contraventions of the Charter or for systemic negligence

h) Canada is not liable for punitive damages on a class-wide basis but may be liable for punitive damages after the Charter damages or the damages for systemic negligence are determined at the individual issues’ trials. [ 17 ] Both the Reddock and Brazeau

summary judgment decisions were appealed. The Ontario Court of Appeal heard the appeals together and issued one decision: Brazeau v Canada (Attorney General) , 2020 ONCA 184 . In Brazeau , the Court of Appeal set aside the order that the aggregate damage award should be used for programs and not distributed to class member. In Reddock , the Court of Appeal set aside the finding of systemic negligence. [ 18 ] The Respondents concede they are class members in Reddock but not Brazeau .

Whether they are class members in Brazeau is not clear given the allegations in the Amended Statement of Claim that two of the Respondents suffer from mental health issues. [ 19 ] On October 30, 2017, after Brazeau but before Reddock was certified , the Respondents applied to the Master for

summary judgment and dismissal of Canada’s Statement of Defence. They argue that Justice Veit’s habeas corpus decision is a finding that Canada’s conduct is unlawful and is determinative of liability in the action. Canada is estopped from relitigating the legality of placing and continuing to hold the Respondents in administrative segregation. On March 19, 2018 the Master dismissed the Respondents’

summary judgment application: Hamm v. Canada (Attorney General) , 2018 ABQB 206 . [ 20 ] The Respondents’ appeal of the Master’s decision was dismissed on April 5, 2019: Hamm v Canada (Attorney General) , 2019 ABQB 247 . The Respondents appealed to the Court of Appeal. [ 21 ] On October 1, 2019, Canada filed an application seeking a stay of Hamm until the conclusion of Reddock and Brazeau . Canada applied for an adjournment of the appeal of the

summary dismissal decision scheduled for a hearing on November 25, 2019. Feehan J.A. adjourned the appeal until after the final determination of Canada’s stay application: Hamm v. Attorney General (Canada) , 2019 ABCA 391 .

[22] Canada’s stay application was heard on October 28, 2019. The Master delivered a written decision November 29, 2019:Hamm v Canada (Attorney General), 2019 ABQB 913. The Master divided the action into two components: the

summary judgmentapplication before the Court of Appeal and the balance of the action. The Master concluded that the

summary judgment appeal should beallowed to proceed for the following reasons:

a) The issue raised in the

summary judgment appeal (whether the Respondents can convert their successful habeas corpus applicationinto a decision granting liability against Canada, and allowing them to proceed directly to an assessment of damages) is an issue that willnot be decided in Brazeau or Reddock;

b) There is no irreparable harm under; and

c) The balance of convenience favours the appeal proceeding. The Master stated that the issue of a stay for the balance of the action can be revisited depending on the outcome of the appeal. IV Position of the Parties [23] There is no disagreement that I have jurisdiction to issue a stay: Rule 1.4(2)(

h) of the Alberta Rules of Court and s 5(3)(

f) ofthe Judicature Act, RSA 2000, c J-2. The remedy is discretionary. [24] The parties agree that this is the first time that a stay of this nature has been considered in Alberta. There is no body ofjurisprudence in Alberta setting out the correct framework to apply to an application to stay an individual action due to ongoing classactions. [25] The parties disagree on what test or framework I should apply in deciding the application and, regardless of what framework Iapply, whether Canada has met the criteria.

Canada’s Position [26] Canada urges me to apply the three-prong test described by the Alberta Court of Appeal in UCANU Manufacturing Corp vGraham Construction and Engineering Inc., 2015 ABCA 22 (“UNCANU”):

a) Whether the issues in the class action are substantially the same as the issues in this action;

b) Canada must satisfy the court that the continuance of the action would work an injustice; and

c) The stay must not cause an injustice to the Respondents. [27] Canada argues that there is substantial overlap in the facts and legal issues between Hamm and Reddock. Both actions allege s7 and s 12 breaches of the Charter for confinement in administrative segregation for a period exceeding 15 days. This action, like theclass actions, seeks damages under section 24(1) of the Charter, as well as aggravated and punitive damages. [28] Regarding the second part of the test, Canada argues that continuance of the action will work an injustice.

Canada relies onthe class action legislation that requires class members to elect whether to participate in the class action or opt-out. In this case, theRespondents have not opted-out of either class action. Allowing this action to continue in the face of the class actions risks inconsistentdecisions, double compensation, and is not an efficient or effective use of public funds in requiring Canada to defend this action and theclass actions and the effective use of judicial resources. [29] Lastly, Canada argues that there is no prejudice to the Respondents in staying the action.

On the contrary, a stay will benefitthe Respondents in that they can wait and see what compensation they receive from the class action and whether they are left with anyuncompensated damages before deciding whether to proceed with the individual actions. Respondents’ Position [30] The Respondents argue that Canada’s proposed framework deals with a civil action where the parties covenanted or wererequired by statue to resolve their dispute through arbitrations.

As such, is not finetuned to the unique circumstances of this case. [31] The Respondents urge me to adopt a modified version of the of the traditional tripartite test for stay injunctions set out inRJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 (“RJR”):

a) What is the nature of the overlap between this action and the class actions (in RJR terms, is there a serious issue to be tried?);

b) Does the overlap require this action to be stayed until the class actions are decided, failing which the continuance of this action willcause irreparable harm to Canada (in RJR terms, is there irreparable harm if a stay is not granted?); and

c) Whether staying this action will cause an injustice to the Respondents (in RJR terms, does the balance of convenience warrant astay?). [32] The Respondents note that both frameworks begin with the same question: Is there overlap between this action and the classactions? The requirement in the framework Canada proposes is that the two proceedings must be substantially the same. [33] The Respondents argue that this action and the class actions are not substantially the same. The class actions challenge theconstitutionality of the administrative segregation regime under ss 7 and 12 of the Charter. In contrast, this action challenges the

segregation decision itself as unlawful, constituting false arrest, false imprisonment, and a breach of their Charter rights. The Charterbreach arises from the unlawful decision and not the facts of being subject to an unlawful legislative framework.

The Respondentscharacterize the question of liability in this action as “Whether an individual decision to place an inmate in administrative segregation,impugned by a successful habeas corpus application, becomes actionable per se as the tort of false imprisonment?” This question willnever be answered in the class actions. [34] Regarding the second part of the test, the Respondents argue that under both the RJR test and the UCANU test Canada mustdemonstrate evidence of irreparable harm or prejudice.

As Canada failed to file any evidence of harm or prejudice if the action continues,the second part of the test is not met. [35] On the last part of the test, whether a stay will cause an injustice or the balance of convenience, the Respondents argue thatnone of the concerns raised by Canada necessitates a stay. Staying this action will not result in the saving of judicial resources as theunique question of liability in this action must be answered by a court in Alberta at some point in time. As there is a de-facto stay for thebalance of the action, excluding the

summary judgement appeal, the risk of double recovery is not imminent. As the question of liabilityis different in the proceedings, there is no concern of inconsistent verdicts. V Analysis [36] Before adopting any framework, consideration should be given to whether the framework is appropriate to determine whetherto grant a stay of an individual action where there are ongoing class actions.

Although the questions to ask and criteria to consider aresomewhat different under each framework, the ultimate goal is to determine what is in the interests of justice. [37] In determining what is in the interests of justice in this situation, consideration should be given to the objectives andprocedures of class actions and the caselaw in other jurisdictions dealing with stay applications where there are ongoing class actions. Law on Class Actions and Stay Applications Pending Class Actions [38] There are two stages to a class action proceeding. The first stage involves resolution of common issues.

The second stageinvolves resolution of individual issues. [39] To succeed in having an action certified to proceed as a class action, the representative plaintiff must establish that the claimsof the class members raise common issues: s 5(1)(

c) Class Proceedings Act, 1992, S.O. 1992, c.6 (“Act”). This requirement is uniformacross all provincial class action statutes. [40] The key point of a common issue is that the resolution of the common issue will avoid duplication of fact-finding or legalanalysis. An issue may be common even where it makes up a very limited aspect of a liability question and even though many individualissues remain to be decided after its resolution: Cloud v Canada (Attorney General), (ON CA), 73 OR (3d) 401(Ont.

C.A.) [41] Class action legislation provides innovate and effective means of dealing with individual issues that remain after the commonissues trial: T.L. v Alberta (Child, Youth and Family Enhancement Act, Director), 2009 ABCA 182, para 28 (“T.L.”) [42] In practice, representative plaintiffs do not put forward for certification all potential issues or causes of action that might ariseout of a particular factual matrix.

Representative plaintiffs put forward issues or causes of action that are common to all class members.Inevitably there will be individual issues or causes of action that are not included in the common issues. The legislation provides amechanism to address these individual issues in the second stage of the class action. [43] The policy reasons behind class proceeding legislation are access to justice, judicial economy and behaviour modification:T.L., at para 29.

Class actions are a significant tool in allowing courts and parties to resolve or advance a multiplicity of individualclaims in a consistent manner maximizing efficiency of judicial resources: Vaeth v North American Palladium Ltd., 2016 ONSC 5015,para 14. Consistent decisions and judicial economy are in the interests of justice. [44] Notwithstanding the benefits of class actions, class proceeding legislation allows individual plaintiffs the choice of whether toparticipate in the class action or maintain their litigation autonomy and sue the defendant in an individual action.

The Ontario legislativeframework contains an opt-out provision.

Section 9 of the Act provides that any class member may opt-out of the class action in themanner and time specified in the certification order. [45] If a class member does not opt-out in accordance with the certification order, the class member is bound by decisions reachedin the class action and loses his or her litigation autonomy.

Where a class member does not opt-out of proceedings, the court will stay hisor her individual proceedings: Dumoulin v Ontario, at paras 8 – 10; Cheung v Kings Land Development Inc., (ON SC), 55 OR (3d) 747 (S.C.J.) at para 12, leave to appeal ref’d (ON SCDC), 156 OAC 73 (S.C.J.);Durling v Sunrise Propane Energy Group Inc., 2011 ONSC 266 at paras 18 – 20. [46] Class proceedings legislation clearly contemplates that there may be a multiplicity of proceedings arising from the same eventor transaction: Abdulrahim v Nav Canada, 2010 ONSC 5542 , [2010] OJ No. 4660 at para 66.

Notwithstanding, courts retainjurisdiction to issue temporary stays even where class members opt-out of the class proceeding. [47] Canada relies on a decision of the Federal Court in Aziga v Her Majesty the Queen as represented by Attorney General ofCanada, Federal Court File No. T-1978, Order, April 23, 2019. Canada applied to stay Mr. Aziga’s individual action due to overlap withReddock. Mr. Aziga opted out of Reddock. The Federal Court stayed Mr. Aziga’s individual action finding:

a) The individual action is in part grounded on alleged Charter breaches not covered in Reddock, the allegations are based within the

same factual matrix, and to the extent that there are variations in both actions, the differences are not sufficient to justify parallel proceedings;

b) Given the significant overlap in legal issues between the individual action and Reddock , there is a non-speculative risk of inconsistent findings;

c) Canada will be prejudiced by having to defend both actions concurrently and this is inconsistent with judicial economy; and

d) It is in the interest of justice to stay this proceeding pending the final disposition of Reddock . [ 48 ] Canada also relies on another decision of the Federal Court: Turcotte v Her Majesty the Queen, Federal Court File No. T- 953-1, Order, November 14, 2019 (“Turcotte”) . Canada brought an application to stay Mr. Turcotte’s individual action until completion of another class action, Gallone , dealing with administrative segregation for more than 72 hours in federal institutions in Quebec. The decision does not indicate whether Mr. Turcotte opted-out of Gallone .

There was no disagreement on the fact that there was a significant overlap between the issues in the individual action and Gallone .

The disagreement centered on how significant the factual and legal issues raised in the individual action but not in Gallone were, whether they justify allowing the action to proceed, or whether the action should be allowed to proceed on these specific issues while the overlapping issues are stayed. [ 49 ] The Court concluded that a complete stay of the individual action is in the interest of justice because the overlap between the issues in the two cases is inextricably bound and resolution of the overlapping issues is so significant to the resolution of the individual issues.

The Court described the interplay between the two cases at pages 3 and 4 as follows: “As mentioned above, the common issues between this case and Gallone go to whether the fact of prolonged administrative segregation is compensable, and by how much. The additional issues raised by the Plaintiff in this case essentially go to the reasons for which he was placed in administrative segregation, that is, whether he was placed in segregation to suppress his community activism and whether this was unlawful or a breach of Charter -protected rights to freedom of expression, assembly and association.

With respect, the interest of determining whether the reasons for placing the Plaintiff in segregation were unlawful lies primarily in the determination of whether the Plaintiff should be compensated for these unlawful acts. The results of the alleged illegal acts are, however, one and the same: the segregation of the Plaintiff for more than 72 hours. The results of Gallone will indicate whether, and to what extent, the Plaintiff should be compensated for the fact of having been placed in segregation.

Any basic compensation on account of that segregation must be taken into account in determining whether, and to what extent, the reasons for being placed in segregation justify additional punitive damages and whether any other breaches of Charter rights committed in the process ought to be compensated by additional payments. These considerations are by their nature secondary to the determination of the Gallone issues. They cannot be determined in isolation and should be left to be determined once the guidance that will be obtained from the resolution of the Gallone case is available”.

What is the Appropriate Test to Determine whether a Stay should be granted? [ 50 ] I conclude from the class action legislation and the case law addressing the interplay between individual actions and class actions that neither framework proposed by the parties addresses in full the unique considerations at play in determining when an individual action should be permitted to proceed where there is a class action dealing with the same subject matter. [ 51 ] What test is appropriate depends on whether the plaintiffs in the individual action are class members and, if so, whether they opted-out of the class action.

If they are class members and have not opted-out, I agree with the cases that require that the entire action be stayed where the individual issues are inextricably bound with resolution of the issues in the class action. [ 52 ] In Nutech Brands Inc. v Air Canada , (March 19, 2008) 50389CP (Ont. S.C.J.), the Court at para 21 agreed with the following observations of the U.S.

District Court: “We believe that the balance struck by Rule 23 would be upset if individuals could choose to participate in a class for the purposes of settlement with some defendants, but to exclude themselves from the settlement with other defendants. Rule 23 requires potential class members to make a trade-off: an individual either decides to remain a class member, bound by any and all judgments rendered in the class action but spared the expense of litigating on her own behalf, or she elects exclusion.

If she chooses exclusion, she is required to expend her own resources to bring her claims against the defendants, but she may potentially be rewarded by receiving a larger recovery. Permitting an individual eligible to be a class member to opt out as to some defendants but not as to others would allow her to have the best of both worlds.

She could opt to remain in the class action as to defendants against whom she claims were relatively weak, hoping for some recovery at little or no expense to herself, while opting out as to other defendants to pursue relatively stronger claims in the hopes of securing a more lucrative recovery that she would receive as a class member ( Re Del-Val Financial Corp.

Securities Litigation, 162 F.R.D. 271 at 275-76 (S.D.N.Y. 1995) )”. [ 53 ] In my view, these comments apply to a situation where a class member elects to participate in a class action with respect to some causes of action, but wishes to maintain an individual action against the same defendant for other causes of action. Unless the unique issues can be separated from the class action issues, the entire action must be stayed. It is not necessary for the defendant to prove irreparable harm or that the balance of convenience favours a stay.

These factors are already considered and balanced in the provisions of class action legislation that provide individuals with the right to opt-out but require individuals to make an election. [ 54 ] The situation is different where the plaintiffs in the individual action have opted-out of the class action.

In this scenario, by giving class members the right to opt-out and maintain their own individual actions, the class action legislation recognizes and accepts that there may be some inconsistency in decisions, some prejudice to defendants in having to defend different actions simultaneously and some inefficiency of judicial resources. In determining whether to grant a stay of an individual action where the individual has opted-out, the court must balance the individual’s right to litigation autonomy with the interests of avoiding inconsistent judgments and the inefficient use of resources.

In achieving this balance, each case must be decided on the particular facts of the case and the court should

consider all relevant factors including: why the plaintiffs elected to opt-out; the status of the actions; the potential for inconsistent decisions; and the resources involved in litigating both actions. There is no one criteria that is determinative. Are the Individual Issues in the Hamm Action Inextricably Bound with the Class Actions? [ 55 ] The Respondents admit they are class members in Reddock . From the allegations in the Amended Statement of Claim, it is debatable whether some of the Respondents also fall within the class definition in Brazeau .

Canada’s evidence, which is not disputed, is that the time for opting-out of both class actions has expired. The Respondents did not opt-out. [ 56 ] In this case the parties disagree on whether there is overlap between Hamm and the class actions and, if so, whether the individual issues are inextricably bound with the resolution of the issues in the class actions. [ 57 ] The Respondents argue that Hamm exists independently to Brazeau and Reddock as Hamm targets a different source of harm, advances different causes of action, and seeks different remedies.

Regardless of the outcome of the class actions, Hamm survives. [ 58 ] The Respondents characterize the source of harm in Hamm as the decision to place and keep the Respondents in administrative segregation that was found by Justice Veit to be unreasonable and a breach of the Respondents’ procedural rights. The source of harm in Reddock and Brazeau is a constitutional challenge to the legislative framework. [ 59 ] In terms of different causes of action, Canada concedes that Hamm alleges two intentional torts that are not raised in the class actions: false imprisonment and false arrest.

The Respondents argue that the breach of Charter allegations is different in Hamm as the Charter breach relates to the unlawful decision to place the Respondents in administrative segregation and the corresponding liberty deprivation they experienced as a result of that unlawful decision. [ 60 ] The Respondents argue that Hamm seeks different remedies. In Hamm , the Respondents seek general, aggravated and punitive damages arising from intentional torts and Charter damages arising from Charter breaches.

The class actions seek only Charter damages. [ 61 ] I do not agree with the Respondents that the class actions are entirely based on a constitutional challenge to the legislative framework of administrative segregation. While I agree that the cases finding the legislative framework unconstitutional considerably assisted the class members in the

summary judgment application, I view the class actions as broader than a constitutional challenge to legislation. Regarding the causes of action, the Amended Statement of Claim does not persuade me that the breach of Charter allegations is different in Hamm . I am also not persuaded that the remedies available to the Respondents in the class actions are different than Hamm . In the

summary judgment decision, the Court in Reddock awarded the class members a base level of damages on an aggregate basis of $20 million for vindication, deterrence and compensation. This is without prejudice to the rights of class members to seek additional Charter damages and punitive damages at the individual issues trials. Canada’s concern goes to double compensation. [ 62 ] Hamm and the class actions are actions for damages. The source of harm in all three actions is the same; individuals in administrative segregation without lawful authority.

There are different potential causes of action that can be alleged to establish the lack of lawful authority. These include: unconstitutional legislation; policies and procedures that violate Charter rights; negligence; and intentional torts. If successful, these different causes of action lead to the same conclusion; individuals are in administrative segregation without lawful authority. Although the Court in Reddock and Brazeau awarded an aggregate base level of damages, the nature and degree of harm experienced by class member is individual.

The nature of the harm, as alleged in paragraph 32 of the Amended Statement of Claim, may be physical, psychological, social, and spiritual. The measure of damages will depend on the unique experiences of each individual including the conditions of segregation they experienced, the length of time they were placed in administrative segregation, their physical and mental health, the amenities they were denied as a result of being placed in administrative segregation and other factors.

The measure of damages depends on individual circumstances and not on the cause of action that results in a finding of unlawful authority. As noted by the Ontario Court of Appeal in Brazeau and Reddock at paragraphs 43 and 44, Ward contemplates concurrent claims for private law and Charter damages. Charter damages may duplicate private law damages as long as double recovery does not occur. [ 63 ] The measure of damages the Respondents are entitled to for their unique circumstances will be determined in the individual trials in the class actions.

I disagree with the Respondents that, regardless of the outcome of the class actions, Hamm survives. It is possible that after the individual issues trial, the Respondents will be fully compensated. If so, Hamm does not survive. In any event, even if not fully compensated, any damages the Respondents receive in the class action must be accounted for Hamm . The Respondents are not entitled to double recovery. [ 64 ] The Respondents rely on the decision of the Master separating the case into two components: the

summary judgment appeal and the balance of the action. The Master found that if the appeal is allowed, that will be the end of the case. The Respondents in their individual action raise a unique question of liability: Does an individual decision to place an inmate in administrative segregation, impugned by a successful habeas corpus application, becomes actionable per se as the tort of false imprisonment? The Respondents argue that at some point in time, whether this year, or if a stay is granted, in many years, this unique question of liability must be answered by a court in Alberta. [ 65 ] I disagree that if the

summary judgment appeal is successful, that ends the case. If successful, there still needs to be a trial on the issue of damages where double recovery will be an issue. If unsuccessful, the action will continue with double recovery remaining an issue. Either way, there is no escape from the issue of double recovery. [ 66 ] I also disagree that this unique question of liability must be answered by a court in Alberta at some point in time. If the Respondents are fully compensated in the class action, there is no need for an Alberta court to address this liability question.

The Respondents wish to use Hamm to create a precedent on a novel question of law. The Master is correct that this novel question of

liability is not tied to the causes of action in the class actions; it stands apart. I appreciate the Respondents’ desire for a Court of Appeal decision on this unique question of liability. However, allowing the Respondents to seek damages in the class action while advancing individual causes of action for the same damages does an end around the election requirement of class proceedings legislation. This creates a dangerous precedent of allowing class members to have the best of both worlds simply by alleging a cause of action that is unique or different from the common issues in the class action.

This is contrary to judicial economy, one of the goals of class actions, and is not in the interests of justice. [ 67 ] The Respondents rely on the decision in Reddock v. Canada (Attorney General) , 2019 ONSC 3196 where Canada unsuccessfully applied to adjourn the

summary judgment motion in Reddock pending the appeal in Brazeau and the application for leave to appeal to the Supreme Court of Canada in Canadian Civil Liberties Association v Canada , 2019 ONCA 243 . This application is distinguishable. In Reddock , the Ontario Court found that even though there was overlap amongst the three cases, adjourning the

summary judgment motion would not necessarily achieve efficiencies and there was discrete work to be done in Reddock . Regardless of the outcome of the other actions, Reddock would need to proceed. The same is not true for Hamm . If the Respondents are fully compensated in Reddock , Hamm will not proceed. [ 68 ] Lastly, the Respondents argue it is late in the day for Canada’s application where the action was commenced October 2016 and Canada’s application for a stay was filed October 1, 2019, after the Respondents incurred significant expenses on

summary judgment motions. Without deciding whether Canada unreasonably delayed in applying for a stay, the answer to any unreasonable delay is to compensate the Respondents for unnecessary costs. The answer is not to continue to use scarce judicial resources to litigate an action that may not survive the class actions. [ 69 ] In

summary, notwithstanding that Hamm alleges intentional torts that are not included in the class actions, there is substantial overlap between Hamm and the class actions. The nature of the overlap in terms of the damages the Respondents are entitled to in Hamm is inextricably bound with the damages the Respondents are entitled to in the class actions. Should the Hamm Action be Stayed if the Respondents Opt-Out of the Class Actions? [ 70 ] The opt-out deadline in Reddock expired 90 days from June 21, 2018, the date of the Certification Order.

However, the Certification Order allows a class member to opt-out after the deadline with leave of the Ontario Court. [ 71 ] If the Respondents successfully apply to opt-out of the class actions, the considerations regarding whether Hamm should proceed change significantly. Double compensation concerns disappear. There is no possibility that the resolution of the class actions will resolve the individual action. The individual action will need to proceed regardless of the outcome of the class action.

While there may still be concerns about inconsistent verdicts, those concerns remain regardless of whether Hamm is stayed or not. The liability portion of the class actions has been determined by the Ontario Court of Appeal. That decision, while persuasive, is not binding on the Alberta courts. However, that does not change by waiting for the conclusion of the class actions. There is no reason to stay Hamm if the Respondents are no longer members of the class actions.

VI Conclusion [ 72 ] Individuals who are members of a class action must choose whether to pursue their rights in the class action or opt-out to retain their litigation autonomy. Where individuals do not elect to opt-out, in an opt-out legislative regime, the class members are bound by decisions in the class action. Class members cannot pursue individual litigation for unique causes of action where the issues in the individual action are inextricably linked with the resolution of the class action. [ 73 ] The Respondents are members of either the Reddock or Brazeau class action.

They are currently entitled to share in the aggregate award rendered in these actions and are entitled to individual trials for further compensation for their individual damages. The individual trials will determine what further damages the Respondents are entitled to. It is not in the interests of justice for this individual action to proceed until the conclusion of the class actions unless the Respondents successfully apply to opt-out of the class actions. [ 74 ] Canada’s application to stay Hamm is granted.

Hamm is stayed until the conclusion of the class actions or until the Respondents’ successfully apply to opt-out of the class actions. [ 75 ] If the parties are unable to agree on costs, the parties may make written submissions on costs within two months of publication of this decision. Heard on the 6 th day of November, 2020. Dated at the City of Edmonton, Alberta this 8 th day of December 2020. Susan L. Bercov J.C.Q.B.A.

Appearances: Avnish Nanda Avnish Nanda Professional Corporation for the Respondents Amy Martin-LeBlanc and James Elford Department of Justice Canada for the Appellant