Abstract: For nearly two years, the COVID-19 pandemic has brought unprecedented disruption to those living in Canada and around the world. To curb its spread and mitigate its impacts, all levels of government have taken drastic measures to limit movement and social gathering. This has prompted plaintiffs to launch class proceedings alleging unjustifiable violations of Charter rights and to claim awards in damages. This paper examines whether these proceedings are likely to be successful, and ultimately determines that they will not. This paper then argues that the status quo which supports this result is defensible and just. To estimate their likelihood of success, this paper first surveys the history of Charter class actions in Canada and then considers several that have emerged from the COVID-19 context. This paper then reviews the certification test, particularly the cause of action, common issues, and preferable procedure stages, and finds that it is reasonable to expect courts to certify at least some of these class actions. However, since these proceedings likely will and should be denied damages, this would in turn reduce the likelihood of future certification at the preferable procedure stage. Specifically, the Supreme Court of Canada outlined in Vancouver (City) v Ward that courts may refrain from granting damage awards where they would frustrate good governance. This is the main barrier to COVID-19 class actions, as liability in damages would dissuade governments from acting in the best interests of Canadians. As a result, courts should not grant these awards.
Spencer Nestico-Semianiw (Tue,) studied this question.