No Go: Court Refuses To Certify Class Action Against Newfoundland For Restricting Travel During COVID-19

Overview

In Koehler v. Newfoundland and Labrador, 2021 NLSC 95, the Supreme Court of Newfoundland and Labrador refused to certify a proposed class action seeking damages for the provincial government's COVID-19 travel restrictions.¹ Justice Boone determined the class action did not meet the requirements for certification under the Class Actions Act.²

Koehler provides important guidance on the certification of claims for Charter damages, particularly in the rapidly developing area of mobility rights. On that score, the decision extends the Court of Appeal for Ontario's recent line of jurisprudence articulating the level of fault that will justify Charter damages.³ Even where fault is alleged, a class proceeding will not be certified on bald pleadings that the government knew it was violating the Charter. More is required, and it was lacking here.