In the recent decision of Fantl v Transamerica Life Canada (“Fantl”), the Ontario Court of Appeal unanimously dismissed the appeal of the Divisional Court’s decision and confirmed the certification of class claims in negligent misrepresentation, noting that it was time for class actions to “deliver on their promise of access to justice” when it comes to individual issues.
The matter involved a class action lawsuit against Transamerica Life Canada advancing a claim for negligent misrepresentation on behalf of investors in the defendant’s fund. The alleged misrepresentations arose from “best efforts” statements contained in information folders provided to class members pursuant to the Ontario Insurance Act. The claim concerned 53 different insurance contracts – five of which contained an express statement as to “best efforts” and 48 of which did not.
The certification judge, while certifying the action for breach of contract based on the five contracts with express “best efforts” statements, declined to certify the negligent misrepresentation claim based on the information in the folders which accompanied the remaining contracts lacking express statements. He found that two, or at best three, of the five elements of negligent misrepresentation could be common issues. As a result, the issues of reliance and damages would have to be dealt with in extensive individual trials, clearly indicating that a class action proceeding was not the preferable procedure for the claims in negligent misrepresentation.
The new Québec Code of Civil Procedure (the “CCP”) has now been in force for eight months. Among the new tools available to ensure “proportionality” and “speediness” in proceedings, s. 234 of the CCP allows the judge to appoint one or more qualified experts to provide expert evidence deemed “necessary in order to decide the dispute”. There has been much speculation in the Quebec legal community about the so-called “single expert” and the context and the type of files in which judges would agree to use their intrusive new power. Most practitioners expected (or hoped) that it would be confined to smaller cases. In Regroupement des citoyens du quartier Saint-Georges inc. c. Alcoa Canada ltée, 2016 QCCS 2969, (“Alcoa”), Justice Carl Lachance of the Quebec Superior Court put an end to the speculation and granted Plaintiff’s motion to appoint an independent expert in the context of a class action. The judgment was not appealed.
In Alcoa, a group of roughly 700 residents sought compensation in connection with an alleged contamination caused by polycylic aromatic hydrocarbons (“PAHs”) emitted from Alcoa’s aluminum plant adjacent to the houses in Baie-Comeau, Québec. The class action was authorized (the Quebec term for “certified”) on May 23, 2007. Between 2007 and 2009, the Court ruled on motions to strike allegations, motions for particulars and objections. However, no judgment was rendered by the Court between October 2010 and April 2016, and according to the docket, nothing was filed between November 2011 and November 2014. Continue Reading
In Warner v Smith & Nephew Inc (“Warner”) the majority of the Alberta Court of Appeal held that meeting the procedural requirements for certification trumped concerns regarding the substance of the action. The Court disagreed on whether and to what extent evidence may be considered on a certification motion. The reasons for this are clear (although where the line ought to be drawn is not): the Supreme Court of Canada has directed courts to provide a meaningful screening device on certification by conducting more than a superficial analysis but not an assessment of merits or weighing of the evidence. Continue Reading
On July 28, 2016, in Bartram v. GlaxoSmithKline Inc., 2016 BCSC 1409, the BC Supreme Court dismissed the defendants’ application for an order striking out a jury notice and requiring that an upcoming trial of the common issues be heard by a judge alone.
The case involves allegations that newborn infants suffered cardiovascular birth defects as a result of their mothers’ use of the anti-depressant drug Paxil during pregnancy. The Defendant, GlasxoSmithKline Inc., marketed the drug in Canada.
A trial of the common issues is set for October 3, 2016 to last 40 days. There are 10 common issues to be determined at the trial.
Commenting generally on jury trials in class actions, the judge made two observations: first, that nothing in the BC Class Proceedings Act precludes a trial by jury in a common issues trial, although the nature of a class action may introduce additional considerations; and second, that common issues are appropriate for trial by jury does not preclude a contrary finding in relation to subsequent trials of individual claims. Continue Reading
In the recent decision of Ammazzini v Anglo American PLC (“Ammazzini”), 2016 SKCA 73, the Saskatchewan Court of Appeal granted leave to appeal an order made in chambers conditionally staying a proposed multi-jurisdictional class action (the Ammazzini Action) against the respondents, Anglo American PLC, De Beers Canada Inc. and others, pending a certification decision in a similar class action commenced in Ontario by Kirk Brant (the Brant Action).
This matter involved four separate class action proceedings, at various stages and involving plaintiffs (or prospective plaintiffs) in jurisdictions across Canada. The actions involved allegations that the defendants overcharged for gem grade diamonds by restricting the world supply of diamonds to inflate the price. Further background on this case can be found at http://www.canadianclassactionsmonitor.com/2016/06/can-representative-plaintiffs-from-other-jurisdictions-adduce-evidence-in-a-certification-application/#more-1450. Continue Reading
Recently in Sandhu v. HSBC Finance Mortgages Inc., 2016 BCCA 301, the British Columbia Court of Appeal (the “BCCA”) decertified a class action where the plaintiffs sought damages or restitution from HSBC Finance Mortgages Inc. and the Household Trust Company in relation to title insurance fees. In allowing the appeal, the BCCA disqualified two of the representative plaintiffs finding that they had engaged in “extortionate” settlement tactics before certification in a manner that did not reflect the values inherent in the Class Proceedings Act.
The plaintiffs alleged that when borrowers enter into a mortgage commitment with the HSBC defendant, they authorize a variety of fees relating to title insurance, variously described as a “Premium”, the “Policy Insurance Cost” and “Additional Charges”. The plaintiffs claimed that some of these fees are actually for undisclosed legal fees and legal costs of the defendants and that therefore the defendants were liable for numerous common law causes of action including negligence and breach of contract and for statutory breaches of the Competition Act, the Business Practices and Consumer Protection Act, and the Mortgage Brokers Act.
HSBC appealed certification on the grounds that two of the four representative plaintiffs were unsuitable, various causes of action were inadequately pleaded, and the commonality of the issues was not duly considered by the chambers judge. Continue Reading
The recent British Columbia case of Tonn v. Sears Canada Inc., 2016 BCSC 1081, is an example of a trend in Canadian cases where courts are conditionally certifying class proceedings despite a plaintiff’s failure to define the class as required or dismissing the application with substantial guidance for re-application.
In Tonn, a group of former employees sought to certify a class action against Sears for allegedly terminating their employment without proper severance. In March 2013, Sears sold a division of its business to another company. The majority of the employees in this division obtained employment with the purchasing company and were not paid severance by Sears. Within a year of the sale, the purchasing company went out of business, which resulted in the termination of employees’ jobs.
The court dismissed the plaintiff’s certification application finding that two of the five certification requirements were not met. The court held that the identifiable class requirement was not met because the class definition was overly broad and improperly included substantive issues to be determined at trial. The court also held that the claims, as defined by the plaintiff, did not raise common issues among the class members.
In dismissing the certification application, the court provided substantial guidance on suitable amendments and expressly invited the plaintiff to re-apply for certification. The guidance extended beyond minor adjustments. The court provided suggested revisions to the class definition and common issues and suggested that these amendments would result in certification upon re-application. Continue Reading
In Raleigh c. Maibec inc., 2016 QCCS 2533, Justice Soldevila refused to authorize a “copycat” class action on behalf of consumers who had purchased wood siding and shingles manufactured by Maibec inc. (“Maibec”), a Quebec company.
The Petitioners were Helen and Steven Raleigh, both American citizens, and Roger Hamel who resides in Quebec. The Petitioners alleged that the wood sidings manufactured by Maibec prematurely deteriorated, that Maibec misrepresented the durability and quality of its products, and that Maibec refused to honour its warranty. The Petitioners alleged breaches of the Quebec Code of Civil Procedure (“CCP”), and the Quebec Consumer Protection Act.
In her reasons, Justice Soldevila noted that the proposed class action was a “copycat” of another class action commenced in the United States in 2011, and that the Petitioners had put forth a very minimal effort to present their motion.
Justice Soldevila held that the proposed class action could not be authorized on multiple grounds, including the following:
- The Petitioners did not present any facts that detailed why the product was deficient, what the common manufacturing defect was amongst all of the different products, or how long these defects had existed. Concerning the alleged misrepresentation about the warranty, the Court found that the Petitioners did not even choose the product that was to be used as siding for their houses.
- The class composition was much too large as it was not limited territorially or temporally: it covered all of Canada as well as the United States, and included all of the products manufactured during the 70 years since Maibec has been in operation.
- The Petitioners failed to present proof of similarities in the relevant legislation applicable in the multiple jurisdictions, such as legislation regarding civil liability, prescription and consumer protection. In other words, the Court held that the Petitioners were attempting to bite off more than they could chew in one class action.
- The Petitioners were not suitable representatives for the class since the Raleighs replaced the alleged defective siding of their house with the exact same siding, and Mr. Hamel refused to implead his contractor due to personal reasons.
Class proceedings often concern issues that involve persons residing in a number of provinces. A representative plaintiff residing in one province may seek to certify a class proceeding on behalf of a class that includes persons that reside outside of the province. Saskatchewan class proceedings legislation defines such a proceeding as a “multi-jurisdictional class action”. A class member residing in another jurisdiction may also seek to commence a class action in his or her jurisdiction on behalf of the same class with the result that multiple class actions in different jurisdictions relate to the claims of overlapping groups of persons.
In order to avoid this kind of duplicative litigation, The Class Actions Act requires the Court to determine if it would be preferable for the claims or common issues to be resolved in the other class action. In making this determination the Court must consider certain objectives of the legislation such as promoting judicial economy, and all relevant factors including the stage that each of the actions has reached and the location of the representative plaintiffs and class members in the various actions. The Court may refuse to certify the Saskatchewan class action if the Court determines that it should proceed as a multi-jurisdictional class action in another jurisdiction.
The Class Actions Act also provides that representative plaintiffs in multi-jurisdictional class actions elsewhere in Canada that involve the same or similar subject-matter as the Saskatchewan class action are entitled to notice of the Saskatchewan certification application. The representative plaintiff from the other jurisdiction is explicitly permitted to make submissions at the Saskatchewan certification application. However, The Class Actions Act does not expressly provide that the plaintiff in the other jurisdiction can file evidence or make applications. The recent decision of the Saskatchewan Court of Queen’s Bench in Ammazzini v Anglo American PLC, 2016 SKQB 53 (“Ammazzini”) has interpreted The Class Actions Act to also permit the representative plaintiff from the other jurisdiction to adduce evidence and to make an application for a conditional stay of the Saskatchewan class proceeding. Continue Reading
In Frank-Fort Construction inc. v. Porsche Cars Canada Ltd., the Quebec Superior Court (Justice Donald Bisson) recently ruled on an Application to be relieved of default for failing to file an Answer to a Motion to Authorize the Bringing of a Class Action within the prescribed 15-day time limit. Filing of an Answer is the equivalent of filing an Appearance under the New Code of Civil Procedure (“new CCP”) in force in Québec since January 1, 2016.
The authorization motion was filed on November 10, 2015 and served on the last Respondent on November 17, 2015. Under the new CCP, the deadline to file an Answer is 15 days after being served with the motion. As none of the four Respondents had filed an Answer, on December 11, 2015, the Petitioner filed for Default Judgment. Although a Default Judgment filing is highly unusual in class actions proceedings, it remains available to the Petitioner.
The authorization motion was heard ex parte in February 2016 (Justice Pierre C. Gagnon). Continue Reading