Werner Koehler First Plaintiff And: Sharon Koehler Second Plaintiff And: Her Majesty the Queen in Right of the Province of Newfoundland v. Labrador, 2021 NLSC 95

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Koehler v. Newfoundland and Labrador , 2021 NLSC 95 Date : June 29, 2021 Docket : 202001G2784 Between: Werner Koehler First Plaintiff And: Sharon Koehler Second Plaintiff And: Her Majesty the Queen in Right of the Province of Newfoundland and Labrador Defendant Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 13 and 14, 2021

Summary: The Plaintiffs were ordinarily resident in Ontario but owned a residential property that they occupied, and a business that they operated, on a seasonal basis in Newfoundland and Labrador. They claim damages in an action against the provincial Government alleging that travel restrictions imposed by a Special Measures Order adopted in relation to the COVID-19 pandemic violated their Charter rights to mobility, equality, and freedom of expression, and caused actionable nuisance.

The Plaintiffs' application to certify their action as a class action was dismissed because it did not meet the criteria under s. 5(1) of the Class Actions Act . The Plaintiffs’ application did not demonstrate that they had a viable cause of action. In particular, although the Plaintiffs sufficiently pleaded a violation of their mobility rights, they did not have a viable cause of action for Charter damages because they did not plead that the Government actions were an abuse of power, in bad faith, or with clear disregard for their Charter rights.

The Government action of which they complained, did not affect land and, therefore, did not constitute a viable plea in nuisance.

Appearances: Robert W. Buckingham and William A.F. Hiscock Appearing on behalf of the First and Second Plaintiff Donald E. Anthony, Q.C., H. Michael Rosenberg and Leah Strand Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Taylor v. Newfoundland and Labrador, 2020 NLSC 125; Ring v. Canada (Attorney General), 2010 NLCA 20;Atlantic Lottery Corporation Inc. v. Babstock, 2020 SCC 19; Newfoundland and Labrador v. Chiasson, 2020 NLCA 28; Ward v.Vancouver (City), 2010 SCC 27; Ontario (Attorney General) v. Dieleman, (ON SC), 1994 CarswellOnt 151, 117D.L.R. (4th) 449 (Gen.

Div.); Committee for the Commonwealth of Canada v. Canada, (SCC), [1991] 1 S.C.R. 139;Attorney General of Ontario v. 2192 Dufferin Street, 2019 ONSC 615; Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian & Northern Affairs), (SCC), [1999] 2S.C.R. 203; Siemens v. Manitoba (Attorney General), 2003 SCC 3 , [2003] 1 S.C.R. 6; R. v. Turpin, (SCC),[1989] 1 S.C.R. 1296; Haig v. Canada (Chief Electoral Officer), (SCC), [1993] 2 S.C.R. 995; McCarten v. P.E.I.,(1994), (PE SCAD), 117 Nfld. & P.E.I.R. 1, 112 D,L,R, (4th) 711 (P.E.I.S.C. (App.

Div.), aff’d 115 D.L.R. (4th) viii(note); Canadian Snowbirds Association Inc. v. Attorney General of Ontario, 2020 ONSC 5652; Mancuso v. Canada (Minister ofNational Health and Welfare), 2015 FCA 227; Whaling v. Canada (Attorney General), 2017 FC 121, rev’d in part on other grounds2018 FCA 38; Canada (Attorney General) v. Liang, 2018 FCA 39; Inlakhana v. Canada (Attorney General), 2017 ONSC 821; Roach v.Canada (Attorney General), (ON SC), 2009 CarswellOnt 922, 185 C.R.R. (2d) 215 (Sup. Ct.); Henry v. BritishColumbia (Attorney General), 2015 SCC 24; Hoffman v.

Monsanto Canada Inc., 2005 SKQB 225, aff’d 2007 SKCA 47, aff’d [2007] 3S.C.R. x (note); Douez v. Facebook, Inc., 2018 BCCA 186, aff’d [2018] S.C.C.A. No. 298; Brazeau v. Canada (Attorney General), 2020ONCA 184; Liang v. Canada, 2020 FC 1073 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Public Health Protection and Promotion Act, S.N.L. 2018, c. P 37.3; Class Actions Act, S.N.L.2001, c. C-18.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This is an action for damages against the Provincial Government for certain measures it took to deal with the COVID-19pandemic. [2] The Plaintiffs are not ordinarily resident in this province, but they own a residential property and operate a seasonal businesshere.

They claim that the Government prevented them from travelling here when they wanted to do so. They say that the Governmentaction amounted to a nuisance because it interfered with their right to enjoy their property. They also claim that the Government actionviolated their Charter rights to equality and mobility (Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982,being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11). [3] The Plaintiffs say that others like them were similarly affected by the Government action, and they seek therefore to have theiraction certified as a class action. For the reasons that follow, I have determined that the application for certification should be dismissed. BACKGROUND

The Plaintiffs [ 4 ] The Koehlers ordinarily reside in Elmira, Ontario. During each of the last 10 years they lived for several months at a property that they own in Bay Roberts, from which they also operate a seasonal business. [ 5 ] The Koehlers say that they had travel arrangements to come here in the spring of 2020, but cancelled those plans on learning of the travel ban order. On July 16, they applied for an exemption from the ban which was granted the following day. They did come to Bay Roberts in the summer of 2020.

The COVID-19 Pandemic [ 6 ] COVID-19 is the disease caused by a coronavirus identified as SARS-CoV- 2. The disease produces variable symptoms but the most serious affect the respiratory system. The symptoms could be very serious and could result in death and the need for intensive hospital care. The disease was first identified in the Peoples’ Republic of China in late 2019 and spread rapidly around the world. It was first detected to be affecting people in Canada in January, 2020. The first case in this province, affecting a person who had recently returned from a cruise vacation, was reported on March 14, 2020.

The World Health Organization declared the outbreak a Public Health Emergency of International Concern on January 30, 2020, and a pandemic on March 11, 2020. [ 7 ] Governments around the world responded to the pandemic with measures designed to control the spread of the disease. These measures included travel bans and restrictions, quarantines, and so-called lockdowns, which prohibited or restricted local movement and business operations. The Provincial Government Measures in Issue [ 8 ] The provincial Minister of Health and Community Services declared COVID- 19 a public health emergency on March 18, 2020.

This declaration was issued pursuant to the Public Health Protection and Promotion Act , S.N.L. 2018, c. P 37.3 , on the advice of the Chief Medical Officer of Health. The conditions required for a declaration of a public health emergency are set out in s. 27(1) of the Act : 27(1) The minister, on the advice of the Chief Medical Officer of Health, may declare a public health emergency in all or a part of the province where the minister is satisfied that (

a) a public health emergency exists; and (

b) the public health emergency cannot be sufficiently mitigated or remedied without the implementation of the special measures available under

section 28 . [ 9 ] The Act provides that the declaration of a public health emergency is time limited to a period of 14 days, but that period can be extended. The declaration in issue has been extended continuously until now. [ 10 ] The Act sets out the kind of measures that may be taken on the declaration of a public health emergency, including restrictions on travel: 28. Special measures 28(1) While a declaration of a public health emergency is in effect, the Chief Medical Officer of Health may do one or more of the following for the purpose of protecting the health of the population and preventing, remedying or mitigating the effects of the public health emergency: (

h) make orders restricting travel to or from the province or an area within the province… [ 11 ] On April 29, 2020, the Chief Medical Officer of Health made Special Measures Order 11, related to travel to this province, effective May 4. This Order prohibited anyone from entering the province, except:

a) Residents of Newfoundland and Labrador;

b) Asymptomatic workers and individuals who are subject to the Exemption Order for the 14-day self-isolation period; and

c) Individuals who are permitted entry to the province in extenuating circumstances, as approved in advance by the Chief Medical Officer of Health. [ 12 ] On May 5, 2020, the Chief Medical Officer of Health issued Special Measures Order (Travel Exemption Order), exempting those individuals:

d) who have a significant injury, condition or illness and require the support of family members resident in Newfoundland and Labrador;

e) who are visiting a family member in Newfoundland and Labrador who is critically or terminally ill;

f) to provide care for a family member who is elderly or has a disability;

g) to permanently relocate to the province;

h) who are recently unemployed and who will be living with family members;

i) to fulfill a short term contract, education internship or placement;

j) who are returning to the province after completion of a school term out of province; and

k) to comply with a custody, access, or adoption order or agreement, provided they make a formal request to the Chief Medical Officer of Health and comply with all other public health orders. [ 13 ] The lettering is continuous between the two Orders because they were consolidated into the Special Measures Order (Travel) issued on May 15, 2020. [ 14 ] The Koehlers say that they were never told the exemption for which they qualified, but presume that it was under item (c) [Individuals who are permitted entry to the province in extenuating circumstances, as approved in advance by the Chief Medical Officer of Health], because they did not fit into any of the other exemption categories.

The Decision in Taylor v. Newfoundland and Labrador , 2020 NLSC 125 [ 15 ] The Koehlers were not the only ones to issue litigation against the Province arising from travel restrictions imposed as a measure to combat COVID-19. [ 16 ] In Taylor v. Newfoundland and Labrador , 2020 NLSC 125 , Burrage, J. considered a constitutional challenge to the Public Health Protection and Promotion Act .

The Plaintiff, supported by the Canadian Civil Liberties Association, sought a declaration that s. 28 of the Act was beyond the legislative competence assigned to the provincial government under the Canadian Constitution, and that the travel restrictions imposed by the Special Measures Order infringed her rights to mobility and liberty under the Charter . [ 17 ] The Plaintiff in Taylor was a resident of Nova Scotia who sought special consideration under exemption (

c) of the travel Order to allow her to travel to this province to attend her mother’s funeral. Her request was initially denied but she asked for reconsideration and, 8 days later, was given permission to travel here. [ 18 ] Burrage, J. decided that: • The Public Health Protection and Promotion Act , s. 28(1) (

h) is within the legislative competence of the Province; • The travel restriction imposed by the Special Measures Order violated the Plaintiff’s right to mobility guaranteed by s. 6(1) of the Charter ; • The travel restriction imposed by the Special Measures Order did not violate the Plaintiff’s s. 6(2) mobility rights because she did not intend by any measure to move to and take up residence or to earn a livelihood in this province; • The travel restriction imposed by the Special Measures Order did not violate the Plaintiff’s right to liberty guaranteed by s. 7 of the Charter ; • The violation of the Plaintiff’s mobility rights was justified under s. 1 of the Charter . [ 19 ] Each of the Province and the Plaintiff have appealed from the decision of Burrage, J. [ 20 ] This case is different than Taylor in important respects.

First, the Koehlers, although they initially challenged the Public Health Protection and Promotion Act , s. 28(1) (

h) on division of powers grounds, now concede the legislative competence of the Province to promulgate that provision. [ 21 ] Second, although the Koehlers initially based their claim for relief on alleged violation of their right to liberty, they now concede that s. 28(1) (

h) does not violate their s. 7 rights. [ 22 ] Third, the Plaintiff in Taylor alleged that the travel restriction in the Order infringed her rights guaranteed by both s. 6(1) and 6(2)(

a) of the Charter . However, Burrage, J. determined that Ms. Taylor did not intend to earn a livelihood or to take up residence in this province and therefore her rights under s. 6(2) were not engaged in that proceeding. In this case, the Plaintiffs do not allege violation of their s. 6(1) rights but instead rely on s. 6(2). For ease of reference, s. 6(1) and (2) read as follows: 6(1) Mobility of citizens Every citizen of Canada has the right to enter, remain in and leave Canada. 6(2) Rights to move and gain livelihood

Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (

a) to move to and take up residence in any province; and (

b) to pursue the gaining of a livelihood in any province. [ 23 ] Fourth, in this case, the Koehlers allege that the travel restriction order infringed their right to peaceful assembly and to equality guaranteed respectively by s. 2(

c) and 15 of the Charter . These rights were not considered in Taylor . [ 24 ] Fifth, the Plaintiffs also allege that actions of the Province in invoking the travel restriction Order constituted the tort of nuisance. [ 25 ] Finally, the Plaintiff in Taylor sought declaratory relief; the Koehlers are only seeking damages. They ask for Charter damages in compensation for violation of their s. 2(c), s. 6(2) and s. 15 rights and compensatory damages for nuisance. ISSUES [ 26 ] The Koehlers have applied to certify their action as a class action under the Class Actions Act , S.N.L. 2001, c. C-18.1 .

The issues in this application are framed by the requirements for certification set out in s. 5 of that Act : 5(1) On an application made under

section 3 or 4 , the court shall certify an action as a class action where (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class of 2 or more persons; (

c) the claims of the class members raise a common issue, whether or not the common issue is the dominant issue; (

d) a class action is the preferable procedure to resolve the common issues of the class; and (

e) there is a person who (

i) is able to fairly and adequately represent the interests of the class, (ii) has produced a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying class members of the action, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members. [ 27 ] The issues for determination therefore are: 1. Do the pleadings disclose a cause of action? 2. Is there an identifiable class of two or more persons? 3. Do the claims of the class members raise common issues? 4.

Is a class action the preferable procedure to resolve those common issues? 5. Are the Koehlers suitable representative Plaintiffs? ANALYSIS [ 28 ] An application for the certification of an action as a class action is a procedural motion. The merits of the proposed action become material only insofar as consideration of the merits helps to inform the certification criteria.

[ 29 ] This application for certification fails to meet the requisite test for a number of reasons. The Statement of Claim does not disclose a viable cause of action. The application fails to identify a proper class. The proposed common issues, with the exception of the issue proposed as to whether the Plaintiffs’ Charter rights were violated, effectively just ask whether the Plaintiffs have a cause of action and therefore fall with the determination that the Plaintiffs have not presented a viable cause of action.

The Plaintiffs are not appropriate representative plaintiffs, and one of the main reasons for this determination would apply by definition to each member of the proposed class. [ 30 ] Although I have determined that analysis of only some of the elements of the proposed class action is sufficient to dispose of the application for certification, the authorities suggest that I should nevertheless consider, at least briefly, all of the s. 5(1) criteria.

S. 5(1)(a): Do the pleadings disclose a cause of action? [ 31 ] The test for whether the pleadings disclose a cause of action is the same as the test applied on an application under Rule 14.24(1)(

a) to strike pleadings for want of a cause of action: Ring v. Canada (Attorney General) , 2010 NLCA 20 . A cause of action is suitable for certification unless, even assuming the facts pleaded by the Plaintiffs will be established, it is plain and obvious that the action will fail. [ 32 ] In considering whether the claims advanced by the Plaintiffs disclose a prospect for success, the Court should consider the viability of claims measured against any applicable mandatory rules of pleading and the elements of causes of action recognized by statute or precedent.

The Court should not refuse to certify a novel cause of action merely because it is novel. However, if a novel claim is surely doomed to fail then it should not be certified merely because it is novel. In considering certification, the Court should consider whether the viability of the claims presented can be determined on the basis of the facts pleaded and the resolution of questions of law engaged by those facts: Atlantic Lottery Corporation Inc. v. Babstock , 2020 SCC 19 at para. 18 and 19 ; and Newfoundland and Labrador v.

Chiasson , 2020 NLCA 28 , at para. 8-19 . [ 33 ] The Koehlers say that their pleadings disclose actions for Charter damages for violation of their right of freedom of assembly, mobility and equality, and compensatory damages for the tort of nuisance. [ 34 ] The Province says that it is plain and obvious that the Koehlers will not be able to establish violation of any of the Charter rights on which they rely; that their pleadings do not allege government conduct of the nature required for an award of Charter damages, and that the impact of the travel restriction is not interference of the nature protected by the tort of nuisance.

Claims for Charter Damages [ 35 ] The Plaintiffs are not seeking declaratory relief as a remedy for the alleged breach of their Charter rights. Instead, the Plaintiffs claim damages as a remedy pursuant to s. 24(2) of the Charter . They seek compensation for the alleged violation of their rights and they plead that claim as follows: 17. The Representative Plaintiffs plead the Defendant knew or ought to have known the Order was unconstitutional and therefore unlawful.

Despite this knowledge, the Defendant enacted and publicized their decision to bar Canadian citizens and permanent residents who are non-resident property owners from the Province. The Representative Plaintiffs plead that they have been unlawfully deprived of the fair use and enjoyment of their land and property interests in the Province. As a result, the Representative Plaintiffs also lost business and income opportunities. 18.

The Representative Plaintiffs plead for damages pursuant to s. 24(1) of the Charter for the Defendant’s breach of the Representative Plaintiff’s Charter rights. [ 36 ] The Charter s. 24(1), reads as follows: 24(1) Enforcement of guaranteed rights and freedoms Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 37 ] An appropriate and just remedy for a breach of Charter rights may include damages: Ward v. Vancouver (City) , 2010 SCC 27 .

The court set out a four-part test for determining whether damages are an appropriate and just remedy in a given case: 4 I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.

At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. [ 38 ] In order to survive a motion to strike or meet the criterion required by s. 5(1) (

a) of the Class Actions Act , a plea for Charter damages must at minimum allege material facts that would, if proven, meet the tests of the first two steps of the Ward analysis. Charter , s. 2(c) : The right to peaceful assembly

[39] The Statement of Claim at paragraph 15 pleads that the Plaintiffs intended to come to this province to live for several monthsand were prevented from doing so because of the Special Measures Order and that: … the Order is a violation [of] the

Section 2(

c) Charter right of freedom of peaceful assembly, and restricting Canadian citizens and/orpermanent residents from entering the Province impede their constitutional right to physically gather, and the restriction cannot bedemonstrably justified in a free and democratic society. [40] During argument, the Plaintiffs conceded that the pleadings did not disclose any intent on the part of the Plaintiffs to assemblefor any purpose other than social.

The intent to live here, they say, carries with it the intent to socialize with others in their home in BayRoberts. [41] The Province argues that the interests protected by the right to freedom of assembly are the physical manifestation of the rightto freedom of expression protected under s. 2(

b) of the Charter, and, therefore, s. 2(

c) rights protect the freedom to peacefully assemblein public places to express opinion. Social gatherings in private places are not protected under s. 2(c). [42] In response, the Plaintiffs say that their claim for Charter damages for the prohibition of peaceful social assembly in privateplaces is a novel claim that ought not be determined on the pleadings alone. [43] There have been only a few cases in Canada that have considered the content of the Charter right to freedom of peacefulassembly.

As a starting point, it is important to note that the right to freedom of assembly is guaranteed as one of the fundamentalfreedoms enshrined in the Charter: 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (

c) freedom of peaceful assembly; and (

d) freedom of association. [44] The Charter ought to be interpreted in a purposive manner. The inclusion of the freedom of assembly with the otherfundamental political freedoms has affected the manner in which the courts and commentators have determined the content of the right. [45] I agree with the following purposive

interpretation of the freedom of peaceful assembly expressed by Adams, J. in Ontario(Attorney General) v. Dieleman, (ON SC), 1994 CarswellOnt 151, 117 D.L.R. (4th) 449 (Gen. Div.): 697 Freedom of assembly is subject to the same analysis as freedom of expression. Freedom of assembly is "speech in action".In Tarnopolsky and Beaudoin ed., Canadian Charter of Rights and Freedoms (1982), at p. 138, freedom of assembly is identified withfreedom of expression in these terms: Freedom of assembly has been defined as "concerned with the public expression of opinion by spoken word and by demonstration".

Thedefinition is as revealing as it is accurate. It not only locates freedom of assembly in the pantheon of freedom of expression from which itsprings, but identifies its distinguishable, or one might say "demonstrable" dimension as well. 698 The authors go on to describe this latter dimension in these terms at pp. 142-143: Aside from the general justifications for freedom of expression, there are specific underpinnings to the right of free assembly. There arethree distinct functions of assembly: a merely communicative function, a pressure function and an openly coercive function.

The essenceof all three functions is the intention to put forth a point of view. Distinctions are based on the intensity of the desire to be heard. If we do indeed have a right to speak, and to be heard, the right to assemble may be the only way of ensuring the advocacy of the right tospeak. Mr. Justice Berger notes that:

Assemblies, parades and gatherings are often the only means that those without access to the media may have to bring their grievance tothe attention of the public. Groups without the money to advertise often find it necessary to demonstrate. If their right to demonstrate is denied, the group mustlanguish in a communicative vacuum. Demonstrations guarantee media exposure and in Western society, access to the media is essentialto the communication of a point of view, and to the fulfillment of group interests.

In addition to this group fulfillment rationale for freedom of assembly, there are social instrumentalist justifications: Whenever the demonstrators are complaining of a bona fide wrong, society's interests will be advanced if their grievance is brought topublic attention and relief is granted. Moreover, by allowing free assemblies, governmental authorities are able to measure both the identity of feeling with regard to an issueand the "extent" of grass-root support for a specific point of view. [46] The purposive

interpretation of the freedom of peaceful assembly expressed by Adams, J. is consistent with the few appellateauthorities that have considered the

interpretation of s. 2(

c) of the Charter and with the case law on freedom of expression, thought,opinion and religion. The right to peacefully assemble is one that furthers the other fundamental freedoms. It protects the right ofcitizens to gather to express views concerning matters related to the functioning of a civil society. [47] Most of the cases involving

interpretation of s. 2(

c) have involved the right to assemble on public property, and those caseshave considered the importance of access to public property, subject to restrictions for public health and safety, for the expression ofideas: see, e.g. Committee for the Commonwealth of Canada v. Canada, (SCC), [1991] 1 S.C.R. 139. But, leavingaside the question of access to public property, the right to peaceful assembly is one that protects people and not places.

I agree with theconclusion of McArthur J. in Attorney General of Ontario v. 2192 Dufferin Street, 2019 ONSC 615, at para. 54, that “the jurisprudencedoes not go so far as to suggest that the right to peaceful assembly includes a particular physical venue for assembly.” [48] I note that the Plaintiffs are not saying that their freedom of peaceful assembly has been affected by any of the restrictions ongathering that have been imposed by other orders issued under the Public Health Promotion and Protection Act.

They are merely sayingthat because Special Measures Order 11 prohibited them from coming here they couldn’t socialize here. [49] I therefore conclude that the Plaintiffs have not sufficiently pleaded a breach of their right to freedom of peaceful assembly. Charter, s. 6(2): The right to move and take up residence and pursue a livelihood [50] The mobility rights protected by s. 6(2) are clearly to be read disjunctively. There are two rights guaranteed by s. 6(2): 6(2) Rights to move and gain livelihood Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (

a) to move to and take up residence in any province; and (

b) to pursue the gaining of a livelihood in any province.

Section 6(2)(a): The right to move to and take up residence [51] The Statement of Claim pleads that the Plaintiffs ordinarily reside in Ontario, but that they own a property in Bay Roberts andthey “return to this province for several months every year to live.” The question raised by this action is whether the plea that thePlaintiffs were prevented from living for a few months in this province is sufficient to establish an actionable violation of their s. 6(2)(a)rights. [52] In Taylor, Burrage , J. engaged in a considered analysis of the mobility rights guaranteed by s. 6 of the Charter, includingexamining the historical and international law context within which those rights were added to the Charter.

As this application involvesonly a consideration of the pleadings, such a deep review is not necessary here. However, in my deliberation I benefitted from thereasons of Burrage, J. and I agree with his reasoning and conclusions. [53] The Plaintiff in Taylor intended to come to this province for a short period to attend a relative’s funeral. She had argued thatthe right protected by s. 6(2)(

a) should be read as two rights: the right to “move to” and to “take up residence,” and she further arguedthat the right to move should be interpreted synonymously with the right to travel. Burrage, J rejected that argument and I agree with hisconclusion that the right guaranteed by s. 6(2)(

a) is a singular right at paragraph 370: “Rather, I interpret the language "to move to" asconjunctive with the taking up residence in any province, such that the right as defined is singular, the right to move to and take up

residence.” [54] Burrage, J. did not have to further refine the definition of the mobility rights in s. 6(2)(

a) because he decided that the Plaintiffdid not intend to travel to this province to take up residence: 372 I do not think so, for the right is a mobility right, not a static right of residence. I am prepared to take judicial notice of the factthat from time to time Canadians change their place of residence in Canada. That said, this case does not concern what is meant by"residence", as by any reasonable

interpretation Ms. Taylor did not wish to come to Newfoundland and Labrador for that purpose. [55] The mobility right in s. 6(2)(

a) therefore does not guarantee a right to travel for a temporary purpose and short period, eventhough a person doing so will eat and sleep - and to that extent, live - here for that short period. [56] In this case, the Koehlers intended to stay for a period of several months and to live in a home that they own. [57] In order to answer the question whether the pleaded intent of the Koehlers engaged their s. 6(2)(

a) mobility right, furtherdefinition of that right is required. The parties did not present any authority that considered the limits of the right. [58] S. 6(2)(

a) guarantees the right “to move to and take up residence in any province.” Obviously, a person who changes residencefrom one province or territory to another moves to and takes up residence in the new place. But, does it encompass the circumstancewhere a person resident in one province travels and lives for more than a brief period in a second province? What of a person who livesfor exactly half the year in two places in Canada? Can a person reside in more than one place in Canada? Does it matter that the personowns a home in each place?

What of a person who owns a home in one province but lives most of the year in rented accommodation inanother? Does it matter what they do while they are in each place? Does the manner in which they used each property in the pastmatter, or only their prospective intention at the time they assert their mobility right? [59] The words “move to” and “take up” limit the right but only as a distinction from visit. They don’t assist in answering thequestion as to whether s. 6(2)(

a) protects the right to be resident of more than one province at the same time. [60] There are many cases that define residency for particular purposes and particular statutes. Those cases turn on their facts andthe statutes being interpreted. [61] The Charter should be interpreted in a broad and purposive manner. In the case of s. 6(2)(

a) mobility rights, the wording issuch that it can support the right to have more than one place of residence at the same time. There is nothing in the wording “move toand take up residence” that requires that the person moving and taking up residence in one province simultaneously gives up residence inanother. [62] The Special Measures Order provided for an exemption for persons who travel to this province for the purpose of permanentlyrelocating here. For the purposes of applying s. 5(1)(

a) of the Class Actions Act, it is not plain and obvious that the Plaintiffs’ claim thatthe Special Measures Order violated their s. 6(2)(

a) rights (because it did not provide an exemption for their circumstance) would fail. S. 6(2)(b): The right to pursue the gaining of a livelihood in any province. [63] The Plaintiffs also allege that the Special Measures Order violated their s. 6(2)(

b) rights to come to this province to pursue alivelihood by operating their business. The Order did not account for this circumstance in either of the following exemptions: (

b) Asymptomatic workers and individuals who are subject to the Exemption Order for the 14-day self-isolation period; (

i) to fulfill a short term contract, education internship or placement [64] For the purposes of applying s. 5(1)(

a) of the Class Actions Act, it is not plain and obvious that the Plaintiffs’ claim that theSpecial Measures Order violated their s. 6(2)(

b) rights, because it did not provide an exemption for their circumstance, would fail.

Charter, s. 15: The right to equality under the law [65] The Plaintiffs allege that the Special Measures Order violated their equality rights guaranteed under s. 15 of the Charter, whichsays: 15(1) Equality before and under law and equal protection and benefit of lawEvery individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. [66] In Law v.

Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, Iacobucci, J.writing for the court, summarized the approach to application of s. 15 that had been developed by the court over the 15 years followingthe adoption of the Charter, a mode of analysis which has continued to be applied since: 39 In my view, the proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter involves a synthesis of thesevarious articulations.

Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra,and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make thefollowing three broad inquiries. First, does the impugned law (

a) draw a formal distinction between the claimant and others on the basisof one or more personal characteristics, or (

b) fail to take into account the claimant's already disadvantaged position within Canadiansociety resulting in substantively differential treatment between the claimant and others on the basis of one or more personalcharacteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatmenton the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a

substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, andhistorical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discriminationin the substantive sense intended by s. 15(1). [67] In this case, the Special Measures Order treated the Koehlers differently than it did permanent residents of this province. [68] The question at issue in this case is whether that differential treatment was based on an analogous ground.

The clear answerprovided by the case law is that it was not. [69] A ground analogous to the enumerated grounds is one that is based on personal characteristics that either cannot change or canonly change at an unacceptable cost to personal identity. In Corbiere v. Canada (Minister of Indian & Northern Affairs), (SCC), [1999] 2 S.C.R. 203, the majority decision of the court described the criteria for determining whether a ground alleged isanalogous to the enumerated grounds: 13 What then are the criteria by which we identify a ground of distinction as analogous?

The obvious answer is that we look forgrounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex,age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basisfor stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeableonly at unacceptable cost to personal identity.

This suggests that the thrust of identification of analogous grounds at the second stage ofthe Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest inexpecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment ongrounds that are actually immutable, like race, or constructively immutable, like religion.

Other factors identified in the cases asassociated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insularminority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable orconstructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-baseddecision making. [70] A person’s place of residence is clearly subject to change, and the right to change residency from one province to another is, aswe have seen, protected by s. 6(2)(

a) of the Charter. For this reason, the authorities have held that place or province of residence is notan analogous ground and unequal treatment under the law based on place of residence is not prohibited by s. 15: Siemens v. Manitoba(Attorney General), 2003 SCC 3 , [2003] 1 S.C.R. 6; R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296; Haig v.Canada (Chief Electoral Officer), (SCC), [1993] 2 S.C.R. 995; McCarten v. P.E.I., (1994), (PESCAD), 117 Nfld. & P.E.I.R. 1, 112 D,L,R, (4th) 711 (P.E.I.S.C. (App. Div.)), aff’d 115 D.L.R. (4th) viii (note); Canadian SnowbirdsAssociation Inc. v.

Attorney General of Ontario, 2020 ONSC 5652. [71] Therefore, the Statement of Claim does not disclose an action based on s. 15 of the Charter that has any prospect of success. Conclusion on Breach of Plaintiffs’ Charter Rights [72] It is plain and obvious that the Plaintiffs’ pleading of a claim for Charter damages based on the allegation that their rightsunder s. 2(

c) and s. 15 of the Charter were violated have no prospect of success. [73] The Plaintiffs’ pleadings that their rights under s. 6(2)(

a) and (

b) of the Charter were violated have sufficient prospect ofsuccess to support a class action for Charter damages, subject to application of the second part of the Ward analysis. [74] In respect of each of the alleged Charter violations, the Province argues that if I find that the pleadings sufficiently set out aclaim of violation, then I should engage in a s. 1 analysis. However, any s. 1 analysis requires a considered weighing of evidencebeyond the role of the Court on a certification motion.

The Threshold for Charter Damages [75] A viable plea for Charter damages must at minimum plead material facts that would, if proven, meet the first two steps of theWard analysis. I have determined that the Plaintiffs have sufficiently pleaded that their rights under s. 6(2)(

a) and (

b) were violated. The next step in the analysis is to consider whether the Plaintiffs have sufficiently pleaded material facts to underpin a finding thatdamages would be an appropriate and just remedy. [76] In general, the rules of pleading do not require express particulars of the basis for an allegation of knowledge. However, thisgeneral rule will not hold where the allegation of knowledge alone is an insufficient plea of the cause of action on which the Plaintiffrelies.

The question for determination here is whether a plea that the Province knew or ought to have known that the Order wasunconstitutional is a sufficient plea that damages are justified based on the second step of the Ward test; that damages “are a just andappropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of theright, and/or deterrence of future breaches.” [77] In essence, the Plaintiffs plead that they should be held entitled to Charter damages because the Government enactedlegislation despite actual or constructive knowledge that the legislation was unconstitutional. [78] I agree with the holdings in the following cases that this pleading is insufficient to survive a motion to strike for want of a causeof action or to satisfy s. 5(1)(

a) requirement that a Plaintiff seeking to certify a class action plead a viable cause of action: Mancuso v.Canada (Minister of National Health and Welfare), 2015 FCA 227; Whaling v. Canada (Attorney General), 2017 FC 121, rev’d in parton other grounds 2018 FCA 38; Canada (Attorney General) v. Liang, 2018 FCA 39; Inlakhana v. Canada (Attorney General), 2017ONSC 821; Roach v. Canada (Attorney General), (ON SC), 2009 CarswellOnt 922, 185 C.R.R. (2d) 215 (Sup.

Ct.). [79] The reason that the pleading is insufficient is that in a case such as this, where the impugned state action is clearly authorizedby a statute which has not been declared invalid, a mere allegation that the state actor knew or ought to have known that the law was

unconstitutional is not enough to invoke the requisite threshold for the award of Charter damages. This view is supported by the following passage from the majority decision in Henry v. British Columbia (Attorney General) , 2015 SCC 24 : 42 Ward provides an example of a prior case where a heightened per se liability threshold was justified by policy reasons. In Mackin v.

New Brunswick (Minister of Justice) , 2002 SCC 13 , [2002] 1 S.C.R. 405 (S.C.C.), this Court held that Charter damages were unavailable for state action taken pursuant to a law, considered valid at the time but later declared invalid, unless the state action was "clearly wrong, in bad faith or an abuse of power" (para. 78). In other words, state actors were afforded a limited immunity for actions taken in good faith under a law they believed to be valid.

Citing Mackin , the Chief Justice in Ward noted that, "absent threshold misconduct", no cause of action for Charter damages will lie in these circumstances (para. 39). 43 When a heightened per se liability threshold has been imposed, this will have consequences at the pleadings stage. To survive a motion to strike, a claimant must plead sufficient facts to disclose a reasonable cause of action: see Knight v. Imperial Tobacco Canada Ltd ., 2011 SCC 42 , [2011] 3 S.C.R. 45 (S.C.C.).

If the alleged Charter violation occurs in a context where courts have imposed a heightened per se liability threshold, the claimant must particularize facts that, if proven, would be sufficient to establish that the state conduct met the required threshold of gravity. The failure to do so will be fatal to the claim. With these principles in mind, I turn to the applicable threshold for wrongful non-disclosure by prosecutors. [ 80 ] In this case, the Order was clearly authorized under the Public Health Promotion and Protection Act .

As noted, the Plaintiffs in this case do not seek a declaration that the Act is constitutionally invalid. Moreover, this Court has already determined in Taylor that the Act is constitutionally valid. In such circumstances, a plea that the Government knew or ought to have known that the Plaintiffs’ rights were violated by the Act hardly seems sustainable. But, for present purposes, it is enough to note that the Statement of Claim asserts a claim for Charter damages based only on the bald allegation that the Province knew or ought to have known that the Order would violate their Charter rights.

The absence of an assertion of bad faith or abuse of power or clear intentional violation of rights, with supporting particulars, is fatal to the claim. [ 81 ] In a determination regarding the sufficiency of pleadings, whether conducted pursuant to s. 5(1) (

a) of the Class Actions Act or Rule 14.24(1)(a), the court should always consider whether an amendment or the provision of particulars might cure an otherwise deficient pleading.

In this case, the question would be whether the Plaintiffs could present a viable cause of action for Charter damages if they amended their claim to include an allegation of bad faith or abuse of power or clear intentional violation of their rights. [ 82 ] However, the Plaintiffs did not, either in their written Briefs, their Affidavit evidence, or their oral argument, suggest that the conduct of the Province in adopting and applying the Special Measures Order acted in a manner that was abusive or in bad faith or even in deliberate violation of their rights.

They presented no basis for concluding that an amendment would present a claim with any prospect for success. [ 83 ] I also note that in his s. 1 analysis in Taylor , Burrage J. thoroughly considered the objectives of the Province in adopting the Special Measures Order, and the measured nature of the Order in responding to the public health emergency presented by the pandemic.

I am mindful that his decision in that regard was based on evidence before him, which is not before me, that the balancing required under a s. 1 analysis is different than the analysis required in stage 2 (and stage 3) of the Ward analysis, and that the balancing was conducted on the basis of his conclusion that the violation of Ms.

Taylor’s mobility rights was “fleeting at best.” However, in light of his findings, I have no reason to anticipate that any amendment by the Koehlers of their Statement of Claim to add allegations of abuse of power or bad faith or clearly intentional disregard for Charter rights could be sufficiently particularized to meet the test in Ward and the requirements of pleading discussed in Henry . Conclusion on Claim for Charter Damages [ 84 ] Although the Plaintiffs’ pleading that their Charter , s. 6(2)(

a) and 6(2)(

b) rights were violated is viable (subject to a s. 1 analysis and application of stage 3 of the Ward formula), their claims for Charter damages based on those alleged violations have no reasonable prospect for success. The Tort of Nuisance [ 85 ] The Plaintiffs plead that the Order unlawfully interfered with their use and enjoyment of their property and business and therefore constituted a nuisance. [ 86 ] The tort of nuisance has no application in the circumstances of this case.

The Plaintiffs say that a cause of action in nuisance arises when one person unreasonably interferes with another’s use and enjoyment of thier land and that because the Order prevented them from getting to their Bay Roberts property to enjoy it, the Order constituted a nuisance. [ 87 ] The Plaintiffs’ position loses sight of the fact that the tort of nuisance is directed at conduct that affects land in a manner that interferes with an owner or occupier’s enjoyment of it. In this case, the Order was directed at persons and precluded persons who did not qualify for an exemption from travelling here.

There was nothing in the Order that affected land. Nuisance is

an act that interferes in a person’s ability to enjoy land because it impacts on the land or a related amenity, not on the individual’s ability to get to their land because of a prohibition that applies to them because of their personal status or characteristics.

An act that inhibits free movement of a person does not become a nuisance simply because one of the places that the person would otherwise be free to go would be their property. [ 88 ] The Statement of Claim does not disclose a cause of action in nuisance that has any prospect for success. Conclusion on s. 5(1) (

a) criterion [ 89 ] The Class Actions Act requires that the Court certify an action if the pleadings disclose a cause of action and the other criteria

listed in s. 5(1) (

b) to (

e) are also met. The Plaintiffs’ pleadings do not disclose a cause of action and the criterion in s. 5(1) (

a) has not been met. The Koehlers’ application for certification is denied on that basis. [ 90 ] Although my finding in respect of s. 5(1) (

a) is sufficient to deal with the Plaintiffs’ certification application, the parties addressed all the certification criteria. I will briefly address each of the criteria from 5(1)(

b) to (e). I note that unlike s. 5(1) (a), the requirement on the Plaintiffs is that they demonstrate some basis in fact that they meet the other criteria. s. 5(1)(b): Identifiable class of two or more persons [ 91 ] The parties are in agreement regarding the requirements developed through the jurisprudence for establishing some basis in fact that there is an identifiable class.

The principles of particular relevance on this application are: • There is a requirement to show “numerosity,” a class of two or more persons; • Membership in the class must be determined by objective criteria that do not depend upon resolution of any substantive issue in the action; • The class definition should bear a rational relationship to the common issues; • The class definition should not be overly broad or overly narrow relative to the likelihood of success; • All class members must have an interest in the resolution of the common issues; • The purpose of the class definition is to define the limits of those entitled to notice and those who will be bound by the result. [ 92 ] The class originally proposed by the Koehlers was defined as follows: Canadian citizens and/or permanent residents ordinarily resident elsewhere in Canada who have freehold and/or leasehold interest in property in the Province of Newfoundland and Labrador, who intended to enter the Province, but were unable to do so due to the implementation of the Special Measures Order (Travel) on May 15, 2020. [ 93 ] During the course of the certification hearing, the Koehlers amended their proposed class definition to the following: Canadian citizens and/or permanent residents ordinarily resident elsewhere in Canada who have freehold and/or leasehold interest in property in the Province of Newfoundland and Labrador, who had a demonstrable plan to enter the Province to take up residence for a period of not less than three weeks or pursue the gaining of a livelihood, but were prohibited by Special Measures Order 11 and were not eligible for exemption under Special Measures Order 11 exemptions a, b, d, e, f, g, h, i, j, k. [ 94 ] The words “demonstrable plan” were substituted for “intent” to address concerns raised during the hearing regarding the lack of objective criteria in the original definition, and the necessity obviously inherent in that definition for putative class members to prove their way into the class. [ 95 ] However, the addition of the word “demonstrable plan” to the proposed class definition does not allay those concerns.

It is the fact that membership has to be demonstrated by proof of intention or plan that is the inherent unsuitability of the proposed definition. Class membership that depends upon proof of state of mind is not sufficiently objective to meet the requirements for a workable class: Hoffman v. Monsanto Canada Inc., 2005 SKQB 225 , aff’d 2007 SKCA 47 , aff’d [2007] 3 S.C.R. x (note) ; Douez v. Facebook , Inc. , 2018 BCCA 186 , at para. 74 , aff’d [2018] S.C.C.A.

No. 298; Roach at para. 70 . [ 96 ] During argument on certification, the Koehlers made a factual concession that then led them to propose the class definition that omitted reference to those admitted to the Province under exemption (

c) of the Special Measures Order (those individuals who are permitted entry to the province in extenuating circumstances, as approved in advance by the Chief Medical Officer of Health). The Koehlers were never denied entry to the province. Rather, they made their own decision that the Order prohibited their entry and they cancelled their travel plans. They then wrote to the Premier’s Office and complained about the effect of the Order. On the suggestion of someone from the Premier’s Office, they applied for an exemption and one was granted to them.

As they did not fit within any of the other exemptions, the Koehlers’ exemption must have been granted under paragraph (c). [ 97 ] Therefore, the Koehlers themselves would not have fit the class definition originally proposed and in argument they presented the revised definition. [ 98 ] There is no requirement that the class include every person who may have a claim.

The Plaintiffs are entitled to suggest a class definition that excludes potential claimants if the broader class definition would not meet the requirements of s. 5(1) (b). [ 99 ] There is likewise no requirement that a class definition include only people who have a claim. The important element of the definition is that all members of the class have an interest in the resolution of the common issues, even if such resolution results in only some of them succeeding. However, the elasticity of class definition has limits.

A class definition that includes a large swath of identifiable people who have no claim at all is one defined too widely to be workable or useful: see Ring at paragraphs 60-72. [ 100 ] The exclusion of reference to paragraph (

c) of the Order in the proposed definition would result in the inclusion of people in the class who, like the Koehlers, were never denied entry into the province and therefore whose constitutional mobility rights were never violated, or to use the descriptor applied by Burrage, J. in Taylor , affected in only a “fleeting” manner. There was no reason presented to justify the proposed definition other than to include the Koehlers in the proposed class. Those people would not only have no claim, but

they would have no justiciable interest in the resolution of the proposed common issues. [ 101 ] Further, the Koehlers have not presented any basis in fact to show that there are others like them who would even fit within the proposed class definition. Technically, a class of two persons fits the criteria required by s. 5(1) (b).

However, the imposition of the machinery of a class action on a class of only two persons would be justified in exceedingly rare circumstances. [ 102 ] A judge hearing a certification motion has certain leeway to impose changes to a proposed class definition to meet the concerns of the court regarding the workability of a class action.

However, the only possible class definition that I could conceive of that would have a rational connection to the common issues necessary to resolve this action is one that would include only those non-resident landowners or lessees who were denied exemptions allowing them to relocate to their Newfoundland and Labrador homes.

That definition would exclude the Koehlers, and there is no basis in fact to conclude that it would include anyone at all. [ 103 ] The Class Actions Act , s. 3(1) provides: “One member of a class of persons who reside in the province may commence an action in the court on behalf of the members of that class.” [ 104 ] The question arises whether the phrase “who reside in the province” limits the class or the person who may apply for certification.

Grammatically, because “reside” (as opposed to resides) would appear to limit a plural noun and because of the structure of the sentence, the phrase seems to limit the class to residents of the province.

However, s. 7(2) of the Act provides a means for nonresidents to become members of a class: “A class that is made up of persons resident in the province and persons not resident in the province shall be divided into resident and non-resident subclasses.” [ 105 ] Therefore, notwithstanding the awkward grammar, the phrase “who reside in the province” must limit the ambit of the group who can apply for certification rather than the people who can be members of a class. This also is consistent with the purposes of the Class Actions Act .

There is no reason why the Act should be interpreted to preclude a class made up entirely of non-residents from suing in this province if the alleged wrongdoer is resident here, or as in this case, is the Government of the Province. I will return to address the implications of that finding in discussing the s. 5(1) (

d) criterion that that there be a suitable representative plaintiff. [ 106 ] Notwithstanding that latter conclusion, the Plaintiffs have not satisfied the criterion required by s. 5(1)

b) of the Class Actions Act . s. 5(1)(

c) Common Issues [ 107 ] Class actions seeking Charter damages have been certified and tried: Brazeau v. Canada (Attorney General) , 2020 ONCA 184 ; Liang v. Canada , 2020 FC 1073 . If the Plaintiffs pleadings had included the necessary elements required for a viable class action and had shown some basis in fact that there existed an identifiable class, then there may have been a basis for concluding that common issues existed.

Those common issues would have included whether the rights of the class members had been violated; whether such violation was justified under s. 1 of the Charter ; whether the promulgation and application of the Special Measures Order was conduct that met the threshold for an award of Charter damages; and whether on Step 3 of the Ward analysis the Province demonstrated countervailing considerations that defeated the functional considerations otherwise justifying an award of Charter damages. [ 108 ] However, common issues cannot be identified in the vacuum created by the failure of the Plaintiffs to plead a viable action for Charter damages on behalf of an identifiable class. s. 5(1)(d): Preferable Procedure [ 109 ] Given my findings concerning the criteria in s. 5(1)(

a) to (c), there is no basis on which to conduct the requisite preferability analysis. I will make some comments regarding the arguments advanced by the parties. [ 110 ] The Province argued that the exemption application process provided a suitable alternative relief route for the Plaintiffs. However, the possibility of obtaining administrative exemption would not address the Plaintiffs’ demand for compensation.

Moreover, the only viable class that I could see in this circumstance would be a group of seasonal property owner-dwellers or business operators not ordinarily resident in the province who were denied exemptions. [ 111 ] However, I do agree with another argument advanced by the Province. The entire proposed class, by definition, is composed of people who are not ordinarily resident in the province.

The Class Actions Act , s. 17(2) provides that non-residents are not members of a certified class until they actively choose to participate: “ A person who is not a resident of the province may opt in to a class action in the manner and within the time specified in the certification order where that person, if they were resident in the province, would be a member of the class involved in the action. ” [ 112 ] In this case, the entire proposed class would have to opt-in in order to participate.

People who wish to participate would have to join, and the effect of the Act would be not to bind anyone who doesn’t join. There is no advantage in this circumstance to a class action over a mass joinder tort action. s. 5(1)(e): Representative Plaintiff [ 113 ] The required characteristics for a suitable representative plaintiff are set out in s. 5(1) (

e) of the Class Actions Act : (

e) there is a person who (

i) is able to fairly and adequately represent the interests of the class, (ii) has produced a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying

class members of the action, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members. [ 114 ] In this case, there is another consideration which must be dealt with before considering s. 5(1) (e).

Section 3(1) of the Act sets out who may apply to certify an action as a class action: “ One member of a class of persons who reside in the province may commence an action in the court on behalf of the members of that class.” [ 115 ] The effect of that provision is that even if there could be a class action certified in this province on behalf of an entirely non- resident class, then that class could not have a representative plaintiff drawn from the class.

In such a case, access to justice might require the court to utilize such provisions as s. 3(4) (appointing a person as representative plaintiff who is not a member of the class); s. 16 (participation by class members); and s. 17(4) (appointment of a representative plaintiff for a non-resident subclass] to nevertheless certify a class action). [ 116 ] However, the Koehlers are not suitable representative plaintiffs for any class except the unacceptable class definition which they proposed. The Koehlers were not prevented or prohibited from coming to the province.

They applied for an exemption from the travel restrictions imposed by the Special Measures Order and they were granted one. If there is a class of persons who were prohibited from returning in violation of their s. 6(2) mobility rights and were not granted exemptions, then they might have a claim, but the Koehlers would not be in that class. CONCLUSION and DISPOSITION [ 117 ] The Koehlers’ application for the certification of their action as a class action is dismissed because they have not met the requisite criteria in s. 5(1) of the Class Actions Act .

In particular: • The Koehlers’ Statement of Claim does not disclose any cause of action with a prospect for success; • The Application does not describe an identifiable class of persons; • The Application does not demonstrate any common issues; • A class action would not be the preferable procedure for the remedy sought on behalf of the putative class; and • The Applicants are not suitable representative plaintiffs and their application did not identify any alternative representative plaintiffs. [ 118 ] The Class Actions Act , s. 10 says: 10.

Where the court refuses to certify an action as a class action, the court may permit the action to continue as one or more non-class actions and, for that purpose, the court may (

a) order the addition, deletion or substitution of parties; (

b) order the amendment of the pleadings; and (

c) make another order that it considers appropriate. [ 119 ] In this case, the parties did not address the Court in respect of application of this provision. There is a

Summary Trial application already scheduled. I make no order in respect of the Koehlers’ action other than that certification is denied. _____________________________ Daniel M. Boone Justice