November 6th, 2013
In 2010 the Supreme Court of Canada confirmed¬†that Canadian Courts have the right to award financial damages for state actions that violate individuals rights under the Charter. ¬†In the wake of this ruling a proposed class action lawsuit was started ¬†(Thorburn v. British Columbia) seeking damages for routine strip searches at the Vancouver City jail for individuals who were not remanded into pre trial custody.
The BC Court of Appeal refused to certify the lawsuit as a class action finding that the individual circumstances of each class members strip search would need to be reviewed making the matter unsuitable for a class proceeding. ¬†In reaching this conclusion the BC Court of Appeal provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†These comments from¬†Tiemstra¬†and¬†Dennis¬†are apposite to the circumstances of this case. A class action would not in my view be a fair, effective and efficient procedure for resolving the central issue of the reasonableness of each claimant‚Äôs strip search. This core issue of each class member‚Äôs cause of action, (whether the strip search of that class member was reasonable in all of the circumstances), can only be resolved by individual trials. Therefore instead of providing judicial economy and access to justice, the proposed class proceeding would simply render the litigation inefficient, unmanageable and costly.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I also find no error in the judge‚Äôs declining to address the remaining s.¬†4(2) criteria, as in my view it was evident that the predominance of individual issues rendered the proposed class action inappropriate.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the result, I would dismiss the appeal.