In the July 9 decision Ingram v. Alberta, 2025 ABKB 420, a class action was previously certified on behalf of individual business owners who were “adversely affected by the orders issued in the name of the Chief Medical Officer of Health to mitigate the impact of the COVID-19 pandemic.”
The plaintiffs sought to add a class comprised of corporations and other businesses that were affected by these orders. The province appealed the 2024 certification and said it is not going to relitigate issues that are now before the Court of Appeal.
Alberta submitted that this application should be to add a new class, rather than a subclass. The burden would be on the plaintiffs to satisfy all the requirements for certification. The court agreed.
The plaintiffs pleaded negligence previously and said that this pleading for the proposed corporate class was an extension of that. Alberta argued that this could not succeed as that pleading related to the Alberta Bill of Rights, which is not applicable to corporations because they are not natural persons.
Justice Colin Feasby said that negligence being found not to fail previously did not assist the current application. The limitation of rights to natural persons weighed against a relationship of proximity to the proposed corporate class and the province.
He noted that language used for statutory duty can indicate a standard of care in negligence, not the existence of a duty of care. Statutory breach and further loss can be evidence of negligence breaching a standard of care.
The argument of a duty of care not to breach the Public Health Act and an alleged duty of care to use due process was allowed to go ahead in 2024 because it was arguably embodied in the Alberta Bill of Rights for individuals.
Justice Feasby agreed with Alberta’s objections that the proposed class definition should be amended to strike “including limited liability companies, partnerships, and other legal entities.” Partnerships are comprised of individuals (which is duplicative of the certified class), limited partnerships could fall under either the individual or corporate class, and the word “corporation” already covers limited liability companies.
In 2024, bad faith was characterized as a common issue under negligence. The court found that the question of bad faith was relevant to the punitive damages issue, which Alberta agreed was a common use. Certifying this issue for the proposed corporate class would not undermine the efficiency of the trial process.
Alberta posited that diverse interests of the proposed class required an additional representative plaintiff. This overlapped with its argument that the class proceeding is not the preferable procedure for the proposed class. It said the proposed class includes both small corporations that would fall into the individual class and large corporations that have other interests.
Justice Feasby said he shared the concern that large corporations may not need a class action to advance relevant claims, but this point was not fully argued by the province nor was he persuaded that a potential multiplicity of actions would be efficient.
“The arguments made by Alberta point to a tension between the Plaintiffs’ theory of the case as expressed in the pleadings, written briefs, and oral argument and the definition of the Proposed Corporate Class,” said Justice Feasby.
“The Plaintiffs frame the case as one that is brought on behalf of small businesses operating in Alberta and speculate that the CMOH (chief medical officer of health) Orders benefited big businesses. The definition of the Proposed Corporate Class, however, is expansive and encompasses ‘all corporations’ that carry on business in Alberta.”
He said he asked plaintiffs’ counsel in oral arguments whether this included large corporations. Counsel responded that “he does not consider large corporations to be part of the Proposed Corporate Class and that is not who he thinks that he is representing.”
The framing of the case as for the benefit of small and medium-sized businesses was at odds with the proposed class definition, the court said. It made no reference to the size of the business, so it would therefore include all of them.
It was noted that a relevant question for a lawyer to consider when considering taking on joint retainers (in this case for small and large businesses, respectively) is whether the lawyer would be able to “demonstrate that each client ‘received representation equal to that which would have been rendered by independent counsel.’”
Justice Feasby said the problem was not different potential damages entitlements but rather that the framing of the case was contrary to the interests of some of the proposed class, and counsel “appear to not have any motivation to represent the interests of that part of the Proposed Corporate Class.”
Strategic choices in conducting or settling the litigation may then be made to the “detriment of the disfavoured part of the class, even if there is alignment on the common issues.” The court found there was a fundamental conflict of interest between small and large businesses in pleadings and submissions.
“Small corporations are painted as the victims of the CMOH Orders and large corporations are posited to be the beneficiaries. Whether or not there is truth in either of these suppositions, they pit the Proposed Corporate Class against itself. And the comments of Plaintiffs’ counsel suggest that they have picked a side.”
However, this was not fatal to the certification of a class or classes of corporations if addressed by the plaintiffs because the individual class, proposed corporate class and proposed corporate plaintiff were aligned on the common issues.
The opt-out mechanism also addresses consent in a joint retainers situation, but only if the opt-out notice contains sufficient disclosure of the conflict of interest, as the conflict threatens efficiency and fairness of the proceeding.
Justice Feasby noted that the court can adjourn a certification application to allow for amendments and that he is able to make any procedural order that he, as the judge, considers necessary.
He found that adjournment was appropriate in the circumstances due to the threat to efficient and fair administration of the proceeding. Plaintiffs were encouraged to address the court’s concerns and give possible suggestions on what amendments they may wish to consider.
The application was adjourned without any given time frame.
Counsel for the plaintiffs were Jeffrey Rath and Eva Chipiuk of Rath & Company.
Counsel for the defendant were John-Marc Dubé, Julia Kingdon and Ashley Groenewegen.
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