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Canadian Class Actions Monitor

Procedure Trumps Substance: Alberta Court of Appeal Grants Certification in Warner v Smith & Nephew Inc

Posted in Certification, Class Actions
Kelli McAllisterRenee Reichelt

In Warner v Smith & Nephew Inc (“Warner”)[1] the majority of the Alberta Court of Appeal held that meeting the procedural requirements for certification trumped concerns regarding the substance of the action.[2] 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.[3] Continue Reading

BC Court Refuses to Strike Jury Notice in Common Issues Trial

Posted in Class Actions, Product Liability, Uncategorized
Alexandra Cocks

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

More uncertainty in managing multi-jurisdictional class actions: leave to appeal granted in Ammazzini v Anglo American PLC

Posted in Appeals, Certification, Class Actions
Lyndsey Delamont

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

Sandhu v. HSBC Finance Mortgages Inc.: Disqualifying representative plaintiffs for the use of pre-certification “extortionate” settlement tactics in fee disclosure case

Posted in Certification, Class Actions, Insurance
Alexandra CocksLeah Whitworth

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.[1] 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.[2] Continue Reading

Tonn v. Sears Canada Inc: Dismissing class certification with instructions for future approval

Posted in Class Actions, Trends
Alexandra CocksLeah Whitworth

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.[1]

In Tonn, a group of former employees sought to certify a class action against Sears for allegedly terminating their employment without proper severance.[2] 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.[3]

In dismissing the certification application, the court provided substantial guidance on suitable amendments and expressly invited the plaintiff to re-apply for certification.[4] 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

Superior Court of Quebec Warns Petitioners to Think Twice About Filing Copycat Class Actions

Posted in Class Actions
Pierre-Jerome BouchardAmanda Gravel

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.

Continue Reading

Can Representative Plaintiffs from Other Jurisdictions Adduce Evidence in a Certification Application?

Posted in Class Actions
Theodore Stathakos

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”.[1]  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.[2]  In making this determination the Court must consider certain objectives of the legislation such as promoting judicial economy,[3] 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.[4]  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.[5]

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.[6]  The representative plaintiff from the other jurisdiction is explicitly permitted to make submissions at the Saskatchewan certification application.[7]  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

The Potential Risk of Default Judgments in Quebec Class Actions: Frank-Fort Construction inc. v. Porsche Cars Canada Ltd.

Posted in Class Actions
Andrée-Anne LabbéMichel Gagné

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

Hot Off the Press – Canadian Contractual Interpretation Law 3rd Edition

Posted in Appeals, Class Actions

Canadian_Contractual_Interpretation_Law_BookGeoff Hall, senior litigator at McCarthy Tétrault, authors the newly published third edition of Canadian Contractual Interpretation Law. The book clearly sets out the principles governing the interpretation of contracts in Canada, particularly in light of the landmark decisions of the Supreme Court of Canada in Sattva and Bhasin.

These two cases – both of which cited the second edition of Mr. Hall’s book, and were successfully argued by litigators from the firm – transformed contractual interpretation in fundamental ways, firstly by recognizing contractual interpretation as a highly fact-driven exercise and secondly by recognizing an organizing principle of good faith in Canadian contract law. The third edition can be purchased here.

This article was originally posted on the Canadian Appeals Monitor Blog on June 2, 2016.

Variation on a familiar theme – the scope of Plaintiff’s right to amendment in a class action

Posted in Appeals, Case Comments, Class Actions, Quebec Consumer Protection Act (CPA)
Louis Fouquet

In Martel v. Kia Canada inc. 2016 QCCS 2097, Justice Chantal Tremblay of the Superior Court ruled on a motion by Plaintiffs to amend their claim after the class action was authorized. After going over the general principles, Justice Tremblay dismissed certain amendments on the basis that they would result in an entirely novel claim.

This decision arises out of a class action instituted against Kia Canada Inc., manufacturer of Kia vehicles, on the basis that the dealers required more intense and frequent maintenance than that provided by the manufacturer in its owner manual, on which the class members allegedly relied to decide to purchase a Kia vehicle. Petitioner argued that the manufacturer’s representations in the owner manual were thus false and resulted in unforeseen maintenance costs. Importantly, Petitioner relied on arts. 219 and 228 of the Quebec Consumer Protection Act (CPA) for its claim against Kia Canada.

Continue Reading