Ontario Superior Court certifies class action for immigration detainees in provincial prisons

The Ontario Superior Court of Justice certified a class action lawsuit for 8,360 immigration detainees held in provincial prisons, who claimed their detention conditions violated the Canadian Charter of Rights and Freedoms and breached a duty of care, asserting that the practice is punitive and unlawful.

Between May 15, 2016, and July 18, 2023, 8,360 individuals detained by the Canadian Border Services Agency (CBSA) under the Immigration and Refugee Protection Act (IRPA) were held in provincial and territorial prisons across Canada. This arrangement, facilitated through agreements between CBSA and every Canadian province and territory except Nunavut, involved detaining these individuals under the same conditions as criminal inmates, which included co-mingling with violent offenders, use of restraints, strip searches, and severe restrictions on contact and movement.

Unlike the three immigration holding centres (IHCs) in Surrey, British Columbia, Toronto, and Laval, Quebec, provincial prisons imposed penal conditions on immigration detainees. According to the plaintiffs, these conditions contradicted the administrative nature of immigration detention, as emphasized by CBSA's guidelines.

The plaintiffs, Tyron Richard and Alexis Garcia Paez sought to certify a class action under the Class Proceedings Act of 1992, representing all immigration detainees subjected to these conditions. They argued that CBSA's practice of incarcerating immigration detainees in provincial prisons is punitive, violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and breaching a duty of care owed by Canada to the detainees.

The plaintiffs also proposed a subclass for detainees with mental health conditions, supported by evidence from two class members. They sought damages and declaratory relief to halt Canada’s alleged unlawful behaviour.

The Attorney General of Canada opposed the motion, arguing that the class action would be unmanageable due to the need for detailed individual inquiries and applying different legal standards across provinces. However, the court found that the plaintiffs met the requirements under s. 5(1) of the Class Proceedings Act.

The Superior Court determined that the claims disclose a cause of action under the Charter and negligence. The pleadings set out material facts that could support a claim under sections 7, 9, 12, and 15 of the Charter and a claim of negligence. The class was identifiable, with a rational connection between the detainees and the proposed common issues. The court concluded that the core issues can be decided in common, addressing Canada's conduct in detaining immigration detainees in provincial prisons.

The court deemed A class action the preferable method of addressing the issues, considering access to justice, judicial efficiency, and behavioural modification. The court also found that Richard and Garcia Paez are adequate representative plaintiffs with a workable litigation plan.

The court rejected Canada’s objections regarding the class action's manageability, the adequacy of the representative plaintiffs, and the suitability of judicial review as an alternative. The court highlighted that a class action would efficiently manage the claims, address systemic issues, and provide a feasible path for the detainees to seek justice and damages for alleged Charter breaches and negligence.

As a result, the Ontario Superior Court certified the action as a class proceeding, allowing the case to move forward.