Andrew Eckart, staff lawyer at the Windsor Law Class Action Clinic, is part of the team advancing legal perspectives in the Birth Alerts case as an intervenor. (SUBMITTED BY ANDREW ECKART/University of Windsor)
By Sara Meikle
When newborn babies were taken from their parents under Ontario’s controversial Birth Alerts policy, the removals left lasting trauma for families and highlighted systemic discrimination.
The Windsor Law Class Action Clinic has been granted intervener status before the Court of Appeal for Ontario in a landmark class action that seeks compensation for families harmed as a result of that policy.
The policy, in place until 2020, allowed hospitals to notify child protection agencies when parents flagged as “high risk” gave birth, leading to the immediate apprehension of newborns. It was widely criticized as harmful and discriminatory, disproportionately affecting Indigenous women. The policy was formally ended following the National Inquiry into Missing and Murdered Indigenous Women and Girls.
Andrew Eckart, staff lawyer at the Class Action Clinic, explained that the case hinges on the Ragoonanan principle, a rule in Ontario class actions that requires a representative plaintiff to have a direct cause of action against every named defendant. This means that one person cannot bring a class action against multiple defendants unless that person has an individual claim against each of the defendants.
Applied to the Birth Alerts case, it would require 49 separate plaintiffs — one for each child protection agency involved — creating a logistical and legal barrier that Eckart described as “antithetical to the purpose of class actions.”
“The whole idea of a class action is that one person can step forward on behalf of a group,” Eckart said. “Requiring dozens of representative plaintiffs in a case like this not only creates a barrier for vulnerable people but also limits the ability to hold institutions accountable. The requirement undermines both the access to justice and behaviour modification goals of class actions.”
The Clinic is being represented by lawyers from Koskie Minsky who will present arguments on this complex procedural issue. As intervenors, they will supplement the arguments of the parties, focusing on broader public interest and legal principles that the court may not otherwise hear.
“The Court of Appeal has rarely had an opportunity to fully consider this principle in the context of modern class actions,” Eckart said. “By intervening, we can help the court see how the rule has been misapplied and why reform would not cause any mischief — it would simply remove an unnecessary barrier to justice.”
The case has drawn attention across Ontario’s legal community because of its potential to reshape class action litigation. If the court allows the appeal to proceed against the child protection agencies, the decision could make it easier for future class actions to move forward, particularly cases affecting marginalized groups who might not have the resources or willingness to come forward individually.
The hearing is scheduled to be heard by a five-judge panel on April 13 and 14.
“It’s a highly legal argument, but it’s also about practically ensuring people have the ability to hold institutions accountable when policies like this cause harm,” Eckart said.
The case, G.G. v. Ontario, has already attracted attention for its potential to clarify the scope of class actions in Canada. The Windsor Law Class Action Clinic’s involvement here, on the back of its February appearance as an intervener on a case before the Supreme Court of Canada, underscores the University’s growing role in shaping public interest litigation in Canada.