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Canadian Class Actions Monitor

Class Actions vs Individual lawsuits: The Equifax Litigation

Posted in Class Actions
Sandra AigbinodeMark Keohane

The New Year began with yet another lawsuit against Equifax, Inc. and their Canadian counterpart, Equifax Canada Co. (collectively, “Equifax”). This time a proposed province-wide class action commenced in British Columbia on January 10, 2018. So far, several legal avenues are being utilized by affected individuals which raises interesting legal considerations discussed below.

Brief Recap

Equifax encountered a large security breach in the second quarter of 2017. Some 8,000 Canadians have been affected by the breach, as well as an estimated 143 million Americans, leading to several class action lawsuits throughout Canada and the United States.

British Columbia Courts

On January 10, 2018, Joshua Elliott Temple filed a class action claim at the Supreme Court of British Columbia. The proposed class is limited to those residing in British Columbia who were affected by the breach.

Mr. Temple was an Equifax monthly subscriber who was notified of a breach of his personal information in October 2017. The allegations in Mr. Temple’s claim are for breaches of provincial[1] and federal[2] privacy legislation, negligence, negligent misrepresentations, breach of contract, and that Equifax has been unjustly enriched.

While the proposed class in Mr. Temple’s action is limited to British Columbia residents, the Agnew-Americano Claim (defined and discussed below) is Canada-wide, and includes any person in Canada that meets the class definition. In most cases, plaintiff class counsels cooperate and do not compete to represent common claimants, but Mr. Temple’s action could be subject to a stay if the Supreme Court of British Columbia is convinced that there is no suggestion that multiple claims serve any legitimate interest of the proposed plaintiffs.  The same issue may arise if claimants pop up in other provinces, such as Alberta.

This proceeding is still at its initial stages. We will have to wait and see whether the proposed class action is certified by the court.

Ontario Courts

Sotos LLP and Merchant Law Group both issued class action claims in Ontario on September 12, 2017. Bethany Agnew-Americano and the proposed representative plaintiff are represented by Sotos LLP (the “Agnew-Americano Claim”).  Laura Ballantine (replaced by Adele Perisiol in the amended statement of claim) was the representative plaintiff in the claim advanced by Merchant Law Group (the “Ballantine Claim”).  Both claims involved the representative plaintiffs’ personal information being compromised after the data breach affected their respective Equifax accounts.

Both firms brought motions asking the court to determine which of the plaintiffs should have carriage of the class action brought against Equifax. Justice Glustein of the Ontario Superior Court of Justice issued his decision on January 24, 2018.[3]

Justice Glustein held that the Agnew-Americano Claim was more likely to advance the interests of the class. Justice Glustein used the factors set out by the Ontario Court of Appeal in Mancinelli v. Barrick Gold Corporation[4] and the Ontario Supreme Court in Kowalyshyn v. Valeant Pharmaceuticals International Inc.[5] to consider the carriage motion.  Successful carriage of the class action can mostly be attributed to the broader scope of the Agnew-Americano Claim.[6]  While the Ballantine Claim simply alleged negligence, the Agnew-Americano Claim included a claim for intrusion upon seclusion, a tort recognized by the Ontario Court of Appeal in 2012,[7] as well as negligence, alleged breaches of contract, consumer protection legislation and privacy legislation.[8]  The Court held that these allegations expanded the basis of the claim for class members since, among other things: (1) the tort of intrusion upon seclusion can sustain an action even if the claimant hasn’t suffered any economic harm;[9] and (2) contractual and consumer protection remedies extend the class to those with a contractual relationship.[10]  Other factors considered by the Court included affidavit evidence proving the privacy law expertise of Sotos LLP lawyers, the steps Sotos LLP had taken to protect the interests of the class members and the fact that Merchant LLP did not have a written retainer prior to commencing the Ballantine Action.[11]

United States Small Claims Courts

Canadian plaintiffs may also choose to follow the lead of a few of our American neighbours who have utilized small claims courts as opposed to pursue larger class action lawsuits. With the help of online tools to electronically fill out small claims forms, some Americans have won judgments in the area of $10,000 in a quick trip to the court house.  However enticing this may seem, there are drawbacks to this approach.  Equifax can appeal these decisions, and some self-represented litigants have had difficulties articulating complex legal concepts in court. Filing the claim is one thing, arguing and winning a case is another. What seemed like an expedited approach at first may be turning in to a real-life example of why class action proceedings exist in the first place (i.e. access to justice, avoiding multiplication of cost and effort, etc.).


While Canadians who have been affected by the Equifax breaches weigh their options, including the already existing Canada-wide class action, it is possible that other province-wide class actions may commence. These class actions may result in overlapping claims. There remains the possibility that individuals will consider small claims actions an alternative as has happened in the United States.  We’ll just have to wait and see how all these claims interact with one another.

[1] Personal Information Protection Act, SBC 2003, c 63; Privacy Act, RSBC 1996, c 373.

[2] Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

[3] Agnew-Americano v. Equifax Canada, 2018 ONSC 275 [Agnew-Americano].

[4] 2016 ONCA 571.

[5] 2016 ONSC 3819.

[6] Agnew-Americano at paras 11-14.

[7] Jones v Tsige, 2012 ONCA 32.

[8] Agnew-Americano at para 42.

[9] Ibid, para 139.

[10] Ibid, paras 15, 19.

[11] Ibid, paras 211-228, 239-252 and 258-275.

BCSC clarifies the evidentiary requirements for establishing commonality of harm

Posted in Class Actions
Connor Bildfell

Canadian courts have consistently cautioned against applying an exacting standard of scrutiny at the certification stage. But the B.C. Supreme Court’s recent decision in Ewert v. Nippon Yusen Kabushiki Kaisha issues an important reminder that the standard of assessing evidence at the certification requires more than just symbolic scrutiny.

In Ewert, the Court denied certification due to the plaintiff’s failure to demonstrate a credible methodology to show harm to indirect purchasers. In doing so, the Court reminded prospective class action plaintiffs that certification is not a “file, smile, and certify” exercise.[1]


The plaintiff commenced an action alleging price-fixing by several major operators of roll-on/roll-off (“RoRo”) vessels for shipping vehicles and heavy equipment to Canada.

The plaintiff alleged that the price-fixing – to which several defendants had pleaded guilty in the U.S. and in Japan – had resulted in manufacturers paying higher prices for shipping, and that all or part of these increased costs were passed down the distribution chain. The proposed class included those dealers and end consumers who purchased vehicles downstream (the “indirect purchasers”). Continue Reading

Update on Overtime Class Actions in Canada

Posted in Class Actions
Justin TurcAllyson HopkinsDanielle Douglas

Since 2007, several Canadian employers have found themselves defending class action claims that seek millions of dollars in unpaid overtime.

This post examines some of the recent decisions and settlements relating to overtime class action claims in Canada and provides guidance for employers to help mitigate the risk of overtime class action claims.

Recent Overtime Class Action Cases in Canada:

On January 30, 2015, the Ontario Superior Court of Justice certified a $100 million class action for unpaid overtime in Baroch v Canada Cartage. The class action was brought on behalf of 7,800 former and current employees who alleged that they were entitled to receive overtime compensation. The Court in that case certified 9 common issues, including the issue of whether or not the employer had a policy or practice of avoiding or disregarding its overtime pay obligations under federal law. In this respect, the Court found that there was some evidence of the “existence and commonality of that issue”[1], including evidence that: (a) the employer had no written overtime policy; (b) no document existed that employees could consult to learn how their overtime entitlement would be established; and (c) the employer never issued any written directives to managers, supervisors or the payroll department about how to apply the various overtime rules and thresholds. Continue Reading

The Quebec Court of Appeal comments on the Role of Class Action Representative and Interactions with Class Counsel, in the context of Abusive Proceedings

Posted in Appeals, Class Actions
David E. RobergeMichel Gagné

In a judgment issued on February 19, 2018 in the matter of Deraspe v. Zinc Electrolytique du Canada Ltée[1], the Quebec Court of Appeal (Justices Dutil and Roy concurring, with Justice Rancourt dissenting) confirmed the decision of the Superior Court declaring both class representative and counsel to be vexatious litigants and disqualifying them from the case. This led the majority of the Court of Appeal to make interesting comments on the role expected of the representative in the class action context.

Continue Reading

What’s the test? Admissibility of Expert Opinion Evidence in Certification Applications

Posted in Class Actions
Theodore StathakosMia Tritter

The Saskatchewan Court of Queen’s Bench in Stout v. Bayer Inc., 2017 SKQB 329 (“Stout”) confirmed that the same standard for the admissibility of expert evidence applies in class action certification applications as in other proceedings.  Evidence must satisfy the test for admissibility before it will be considered in the context of certification.  As such, the lesser standard of proof associated with the statutory certification requirements does not reduce the threshold of admissibility of expert opinion evidence in certification applications.

Facts in Stout

Stout is a proposed class action concerning the Essure Permanent Birth Control System (“Essure”), a permanent form of female birth control.[1]  The plaintiffs in Stout allege that the defendants are liable under various causes of action for, among other things, the development, testing, manufacture, promotion, distribution and sale of Essure.[2]

In support of an application to certify the action as a class proceeding, one of the representative plaintiffs filed affidavits of two purported expert witnesses. Before the certification application was heard, the defendants sought an order to strike certain paragraphs of the first witness’ affidavit and an order striking the entire affidavit of the second witness.[3]

The defendants challenged the evidence on the basis that it did not meet the threshold requirements for admissibility of expert opinion evidence.[4]  The plaintiff contended that the lesser standard of proof required to establish the requirements for certification – “some basis in fact”-applied to expert evidence.[5]  The issue before the court was whether the affidavits, or portions thereof, were properly admissible in the application to certify the proposed class action.

Admissibility of evidence & standard of proof for certification

For admissibility of expert opinion evidence, the Supreme Court of Canada established a two-part test in R v Mohan, [1994] 2 SCR 9 (“Mohan”), and restated in White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 (“White Burgess”).  Expert evidence is admissible when:

(i) the four threshold requirements of admissibility are satisfied and

(ii) the benefits of admitting the evidence outweigh its potential risks.[6]

The four threshold criteria for the admission of expert evidence are (i) relevance, (ii) necessity, (iii) absence of any exclusionary rule and (iv) a properly qualified expert. With respect to the qualification requirement, Justice R.W. Elson in Stout noted that impartiality, independence and absence of bias should be considered.[7]

Relative to the general standard of admissibility, the standard of proof for certification is low. A representative plaintiff only needs to present sufficient evidence to establish “some basis in fact” for each of the certification requirements set out in the section 6(1) of The Class Actions Act.[8]

The two-part test applies in certification proceedings

The court in Stout held that the two-part Mohan test applies equally to evidence adduced in certification applications.[9] Justice R.W. Elson stated, “[w]hile the ‘some basis in fact’ standard of proof is clearly less than balance of probabilities standard, it does not diminish the application of the admissibility requirements, including those applicable to expert opinion evidence.”[10]

Analysis of the affidavits in Stout

The proposed affidavits were sworn by a nutritional epidemiologist[11] with a doctorate in physical activity and nutritional epidemiology[12] and an attorney from the United States[13] with an undergraduate degree in astronomy and physics as well as a law degree.[14]

The first witness deposed that she was asked to provide an expert opinion concerning “pharmacoepidemiology, adverse event reporting systems, and methods for assessing general causation for medical devices and adverse events.”[15] However, in cross-examination, she acknowledged that her training did not extend to the topic on which she opined.[16] Rather, her opinion was based on the review of literature published by experts in the field.[17] As such, the court found that the witness was not qualified to provide expert evidence with respect to the use of Essure, including its efficacy, labelling and potential for harm.[18] Her expertise in one field was not transferable to another by simply acquiring information without any specific training or experience in the subject matter.[19]

The second witness deposed that he was qualified as an expert in the Federal Court of Canada to give evidence on adverse event reporting generally and adverse event reporting systems.[20] However, in cross-examination, he admitted that in forming his opinion, he only considered evidence obtained from the plaintiff, deliberately discounting information that may support an alternative conclusion.[21] Based on this factor alone, the court found that, in addition to the witness’ lack of training in health-related matters, he did not qualify as an expert because he lacked independence in his opinion.[22]

Given that Justice R.W. Elson found that neither of the expert witnesses was properly qualified to give an opinion on the commonality of any of the proposed issues, the court did not proceed to the second part of the test. The court granted the defendants’ application, finding that the contents of the affidavits did not meet the threshold requirement for admissibility of expert evidence.

[1] Stout at para 5.

[2] Ibid at para 4.

[3] Ibid at para 11.

[4] Ibid at para 29.

[5] Ibid at para 30.

[6] White Burgess at paras 19 – 24.

[7] Stout at para 43.

[9] Stout at para 49.

[10] Ibid.

[11] Ibid at para 11.

[12] Ibid at para 14.

[13] Ibid at para 11.

[14] Ibid at para 19.

[15] Ibid at para 13.

[16] Ibid at para 16.

[17] Ibid at para 47.

[18] Ibid at para 51.

[19] Ibid.

[20] Ibid at para 23.

[21] Ibid at para 55.

[22] Ibid.

Federal Court confirms no cost awards granted against Plaintiffs for discontinuance of class proceedings under Rule 334.39(1)

Posted in Class Actions
Lan NguyenLyndsey Delamont

In the recent decision of Dennis v Canada, the Federal Court upheld the principle of the “no-costs” approach for plaintiffs who wish to discontinue an action under Rule 334.39(1) of the Federal Court Rules (the “Rules).


Earlier this spring, farmers in Western Canada started a class proceeding in Manitoba against the Minister of Agriculture and Agri-Food, and the former Canadian Wheat Board (“CWB”) and its successors, (collectively, the “Defendants”). Edward Dennis is the named Plaintiff in the proposed action, which is noted to have impacted over 70,000 farmers in the provinces of Manitoba, Saskatchewan, Alberta and the Peace River District of British Columbia (collectively, the “Plaintiffs”). The claim contends that over $145 million had been withheld from farmers and transferred to a contingency fund by the CWB between the crop years of 2010/2011 and 2011/2012. The Plaintiffs now seek this lost amount, in addition to over $15 million in damages. A Statement of Claim was filed both at the Federal Court and at the Manitoba Court of Queen’s Bench.

The Plaintiffs later sought to discontinue the action in the Federal Court because the eventual successor of the CWB was a private entity and therefore not under the jurisdiction of the Federal Court. This matter has not yet been certified as a class action.

Discontinuance of the Federal Claim

Rule 334.3 requires leave of the Federal Court for discontinuances of class actions. All but one of the Defendants consented to the discontinuance. The CWB opposed and brought an application for the summary dismissal of the class action. In considering the application, Justice Barnes held that Rule 334.3 should be read in light of Rule 165, which states that a plaintiff is entitled, as of right, to discontinue a proceeding without the consent of the opposing side, subject to bearing any resulting costs. [3] In the absence of bad faith or misconduct, there is nothing in the Rules that would authorize the Court to impose a dismissal in substitution for a requested discontinuance. Forcing a plaintiff to proceed with an action they no longer want to prosecute would be a waste of judicial resources. [4]

With respect to costs, both of the parties agreed that the Defendants were entitled to costs in connection with the previous motion to strike, and the Federal Court awarded the Defendants $3,500 inclusive of disbursements. In addition, the Defendants sought further costs of the proceeding between the ranges of $11,415.80 to $161,149.84. Justice Barnes applied Rule 334.39(1) which states that no costs may be awarded against any party to a motion for certification of a class proceeding, unless:

(a)             the conduct of the party unnecessarily lengthened the duration of the proceeding;

(b)             any step in the proceeding by the party was improper, vexatious or unnecessary or was taken through negligence, mistake or excessive caution; or

(c)             exceptional circumstances make it unjust to deprive the successful party of costs. [5]

Justice Barnes also referenced the Federal Court of Appeal decision Campbell v Canada which addressed the reasoning for the “no costs” principle under Rule 334.39(1), which is intended to limit the “role of costs as a disincentive to class action plaintiffs.” [7] Justice Barnes held that, with the exception of the motion to strike and the costs awarded for that motion, all of the other material steps in the current proceeding took place after the Plaintiffs’ motion to certify, and were not improper, abusive, or vexatious. [8] Justice Barnes notes that the Plaintiffs’ reasons in Dennis to only pursue their claim in Manitoba was not futile, but rather a matter of strategy. Therefore, the Defendants were not entitled to any additional cost awards.


The Federal Court’s decision in Dennis is a reminder that under Rule 334.39(1), barring any of the stated exceptions, there are limited avenues of cost sanctions against plaintiffs who decide to discontinue a Federal class proceeding. However, there may be the potential for costs if steps were taken prior to a plaintiff’s motion to certify, although this may still be limited to a modest amount, as was the case in Dennis.

The principle of a “no-costs” approach exists to encourage class actions as a cost-effective method for classes of plaintiffs to bring their claims. As a result, defendants in class action proceedings should be cognizant of the inherent risks and likely outcome when considering pursuing costs with respect to a plaintiff’s discontinuance. Dennis also highlights the complexity of planning and handling multi-jurisdictional class actions for both plaintiffs and defendants in relation to strategy, resources, and overall cost considerations.

[1] Dennis v Canada, 2017 FC 1011 (CanLII) [Dennis].

[2] Federal Court Rules, SOR/98-106 [Rules].

[3] Dennis, supra note 1 at para 3.

[4] Ibid at para 6.

[5] Rules, supra note 2, R 334.39(1).

[6] Campbell v Canada (Attorney General), 2012 FCA 45 [Campbell].

[7] Dennis, supra note 1 at para 11, citing Campbell at para 44.

[8] Dennis, supra note 1 at para 12.

British Columbia Court of Appeal upholds the certification of another undisclosed fees case

Posted in Certification, Class Actions
Robyn Gifford

As previously reported, inadequate fee disclosure cases continue to attract class actions in British Columbia, with the weight of authority favouring certification. In the recently released decision of Finkel v. Coast Capital Savings Credit Union, the British Columbia Court of Appeal upheld the certification of another such class action.[1]

Finkel involves undisclosed foreign currency charges. The plaintiff alleges that Coast Capital imposed additional surcharges on members who withdrew foreign currency from their personal accounts through ATMs outside Canada. The plaintiff claims that this additional surcharge breached Coast Capital’s contractual obligations and was a deceptive act or practice, contrary to the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (“BPCPA”).

The British Columbia Supreme Court certified the claims.[2] On appeal, Coast Capital argued that the certification judge erred in that pleadings do not disclose a cause of action and the evidence does not support a finding that the claim raises common issues or that a class proceeding is the preferable procedure.

The Court rejected Coast Capital’s grounds of appeal. Of particular interest for undisclosed fee cases is the Court’s discussion of damages under s. 171 of the BPCPA. Section 171 requires a plaintiff to show that he or she has suffered loss or damage “due to” a contravention of the BPCPA. In a previous decision, the Court of Appeal held that a plaintiff must plead reliance to properly seek damages under s. 171.[3] In Finkel, however, the plaintiff advanced a much broader interpretation of s. 171, arguing that reliance was not required in every case. Instead, the plaintiff argued that the fact of a contractual breach was sufficient to link a statutory breach to the plaintiff’s loss.

The Court of Appeal held that it was not plain and obvious that such a claim was bound to fail. The Court observed that the proper interpretation of s. 171 has yet to be fully settled (despite prior jurisprudence on this topic).[4] The Court concluded it was at least arguable that a contractual breach can establish a causal link between a breach of the BPCPA and damages for the purposes of s. 171.[5] The Court also rejected Coast Capital’s remaining grounds of appeal, emphasizing the importance of deference when reviewing a certification judge’s assessment of the evidence supporting common issues and preferability.[6]

The Court of Appeal’s decision confirms the trend in favour of certification for undisclosed fees cases. The decision is also significant for its discussion of s. 171 and causation, in that it lowers the pleading standards for damages claimed under the BPCPA. Until the question of the proper interpretation of s. 171 is fully settled, it appears as though plaintiffs need not plead reliance when seeking certification of claims involving inadequate fee disclosure.

[1] 2017 BCCA 361 [Finkel].

[2] 2016 BCSC 561. See our previous blog post on the certification decision here.

[3] Sandhu v. HSBC Finance Mortgages Inc., 2016 BCCA 301 at para. 90.

[4] Finkel at paras. 77, 87.

[5] Finkel at paras. 84-85.

[6] Finkel at paras. 92-94, 104.

The Manitoba Court of Appeal Confirms Stay of One Class Action in Favour of Another on the Same Issue

Posted in Class Actions
Elsbeth Cochrane


The question of who should have carriage of a proposed class action is an important one. It determines which plaintiff can define the proposed class, pursue certain claims, and which law firm will represent the lead plaintiff in the proposed class. When faced with multiple claims and proposed classes relating to the same issue, a Court must decide who will have carriage of the matter going forward to certification. The Manitoba Court of Appeal’s recent decision in Thompson et at v Minister of Justice of Manitoba et al (the “Appellate Decision”) provides some indication that courts, when faced with competing potential class actions, may prefer claims with a narrower focus and fewer defendants (and therefore a potentially better chance of being certified).[1]

The Carriage Motion

This proposed class action arose from the provincial and federal governments’ actions in the “60’s scoop”, when Aboriginal children were removed from their families and placed with non-Aboriginal parents. The children subject to these removals now seek damages.

On March 13, 2015 Lynn Thompson, David Chartran, and Laurie-Anne O’Cheek filed what was referred to as a “replacement claim” in their proposed class action (the “Thompson Action”) against Her Majesty the Queen in Right of Manitoba, as Represented by the Minister of Justice of Manitoba and Her Majesty the Queen in Right of Canada, as Represented by the Minister of Indian and Northern Affairs of Canada.[2] The proposed class action was under The Class Proceedings Act.[3] The causes of action included breach of fiduciary duty, negligence, and cultural genocide.[4] The proposed class was:

All Aboriginal persons … who were removed by the Defendants from their families or communities as children, and suffered injuries due to the Defendants’ breach of fiduciary obligations, duty of care and cultural genocide, and their dependants and family members, any other subclasses that this Court finds appropriate.[5]

On April 20, 2016, Priscilla Meeches and Stewart Garnett filed a separate claim (the “Meeches Action”) against the Attorney General of Canada seeking damages for losses similar to those set out in the Thompson Action.[6] The causes of action in the Meeches Action were breach of fiduciary duty and negligence. The sole defendant was the Attorney General. The proposed class in the Meeches Action was:

[A]ll Indian, non-status Indian, and/or Metis children who were taken from (a) their homes on reserves lying within the boundaries of the [Children’s Aid Societies] in Manitoba, or (b) resided within the boundaries of the [Children’s Aid Societies] and had not established residence in a place other than a reserve in Manitoba, at or after September 2, 1966, and were placed in the care of non-Aboriginal foster or adoptive parents who did not raise the children in accordance with the Aboriginal person’s customs, traditions, and practices.

At the carriage motion (the “Motion Decision”) the Motion Judge considered numerous factors and decided that the interests of the putative class and the policy objections of The Class Proceedings Act would be best served by the Meeches Action.[7] In reaching his decision the Motion Judge considered the nature and scope of the causes of action, the theories of the cases, the state of each action, the resource and experience of counsel for each of the plaintiffs, and the prospects of certification.[8] Additionally, he considered the argument that he should allow both actions to proceed to a certification hearing but held that this would needlessly complicate the certification process and would not be in the best interests of the putative class.[9] The Thompson Action was consequentially stayed.[10] The plaintiffs in the Thompson Action appealed the Motion Decision and the stay of their action.

The Manitoba Court of Appeal dismissed the appeal, holding that the motion judge was entitled to deference on a discretionary question like this.[11] In its decision the Court provided further comment on several of the appellant’s arguments. The plaintiffs in the Thompson Action argued that the class in the Meeches Action was too narrow and would exclude members included by the proposed class in the Thompson Action. However, the Court of Appeal deferred to the motion judge, who was alive to this issue. The Court of Appeal stated that exclusion from the class did not mean those individuals would be deprived of access to justice; they would instead have to advance individual claims.

Additionally, the Court of Appeal also deferred to the Motion Judge’s decision that the Meeches Action was more likely to be certified, as it only involved one defendant and because it did not raise the “novel and potentially problematic” claims raised in the Thompson Action.[12] The Meeches Action was also more likely to be certified, according to the Motion Judge, because it relied on pleadings from a similar class action in Ontario.[13] Overall, the factors weighed in favour of the Meeches Action proceeding and in having one action, rather than two, proceed to a certification hearing.


This decision, the first time the Manitoba Court of Appeal considered a carriage motion, confirms the factors a court should consider when determining who should have carriage of a class action.[14] It also confirms that a carriage motion should be heard prior to certification and that courts may be reluctant to allow competing proposed class actions to proceed certification hearings. In considering the best interests of a putative class, the Court may consider what action has the best chance of success at a certification application and may factor into its decision questions of how specifically defined the proposed class is and how successful the proposed claims may be. Ultimately, this decision signals that decisions about which party receives carriage of a matter should be based on a consideration of what is best for the putative class, in consideration of the policy objectives set out in The Class Proceedings Act.

[1] Thompson et at v Minister of Justice of Manitoba et al, 2017 MBCA 71.

[2] Ibid at paras 3-4. The “replacement claim” was filed to correct a service issue. The initial action was filed on April 20, 2009 and was eventually discontinued.

[3] CCSM c C130..

[4] Appellate Decision at para 6.

[5] Ibid at para 5.

[6] Ibid at para 8.

[7] Thompson v Manitoba (Minister of Justice), 2016 MBQB 169 [the “Motion Decision”].

[8] Ibid at para 43.

[9] Appellate decision at para 43.

[10] Motion Decision at para 13.

[11] Appellate Decision at para 42.

[12] Ibid at paras 31, 49.

[13] Ibid at para 50.

[14] Ibid at para 17.

Global Class Actions Gain Traction – Ontario Assumes Jurisdiction over Absent Foreign Claimants

Posted in Class Actions
Charlotte-Anne MalischewskiJoseph Ur

Can individuals who live outside of Canada, who contracted outside of Canada, and who suffered losses outside of Canada, be part of a proposed class without personally consenting to Canadian jurisdiction?

Following the Ontario Court of Appeal’s recent decision in Airia Brands Inc. v. Air Canada, 2017 ONCA 792, the answer is yes.


In short, the Airia Brands case is about a global price-fixing conspiracy claim. The plaintiffs alleged that the defendants, several well-known international airlines, conspired in Canada and throughout the world to fix prices of Airfreight Shipping Services. Leading into certification, the claim involved a putative class made up of members from more than 30 different countries across the world, including so-called absent foreign claimants (“AFCs”). Continue Reading

The Quebec Court of Appeal overturns yet another refusal to authorize a class action; dissenting in part, a judge criticizes the “improvised” approach of class counsel and sends a reminder that normal evidentiary rules will apply at trial

Posted in Class Actions
Jean-Philippe Mathieu

In J.J. v. Oratoire Saint-Joseph du Mont-Royal, 2017 QCCA 1460, the Quebec Court of Appeal (Justices Gagnon, Healy and Marcotte) overturned a refusal by the Quebec Superior Court (Justice Julien Lanctôt) to authorize a class action concerning allegations of sexual abuse by members of a religious congregation. Justice Marcotte partially dissented and would have authorized the class action against only one of the two respondents in light of the absence of any compelling evidence of a link between the St-Joseph Oratory and the alleged victims. Justice Marcotte also sent a strong message to class counsel regarding the evidentiary burden to be applied on the merits and denounced the improvised approach in drafting proceedings.


The class action concerns allegations of sexual abuse committed by members of the Canadian Province of the Congregation of Saint-Croix (the Congregation) in educational institutions, residences, camps and other places situated in Quebec.

The Quebec Superior Court declined to authorize the class action on the basis that none of the conditions of Article 575 of the Quebec Code of Civil Procedure (CCP) had been met. Amongst other things, the Superior Court ruled that the facts presented before it, including approximate lists of alleged victims and tortfeasors, were insufficient to meet the required threshold of Article 575 CCP, namely that the facts alleged appear to justify the conclusions sought. In that regard, the Superior Court accepted the Congregation’s argument that it had been constituted years after the alleged abuse and could therefore not be held liable for the previous congregation’s actions. Moreover, the Superior Court concluded that there existed no allegation establishing a valid evidentiary base in support of the proof of (i) a direct fault by the Congregation and its level of knowledge of the abuse or (ii) a relationship of subordination between the Congregation and its members.

The Decision of the Quebec Court of Appeal (QCCA)

The majority of the QCCA (Justices Gagnon and Healy) held that the Superior Court had erred in its application of Article 575 CCP by failing to appreciate the specific context of the case and the liberal approach that must be applied at the authorization stage of class actions. For the majority, this error “impacted the entire analysis” of the Superior Court (para. 18, our translation). The QCCA majority mentioned that the context included the moral authority of the alleged tortfeasors, their intimate relationship with the alleged victims and the vulnerability of the class members.

The QCCA majority refused to distinguish the petitioner’s particular situation from that of the other class members, rejecting the view adopted by the Superior Court that the class action would turn into a number of mini-trials, and characterized this difficulty as “not critical” (para. 55, our translation). The QCCA majority reiterated that: “[o]nly the demonstration of a “defendable” case is necessary at the authorization stage” (para. 77, our translation). In this context, it held that any argument as to the absence of a link between the alleged tortfeasors and the Congregation, in light of its reorganization as a new legal personality, should be left for the merits.

Similarly, the QCCA held that the Superior Court erred in concluding that the fact that the list of alleged victims had not been verified and that the petitioner had not contacted these victims were grounds not to authorize; this could be dealt with at a later stage. The QCCA also reiterated that an application for authorization that meets all the other criteria of Article 575 CCP cannot be refused based on proportionality principles. The QCCA commented about the importance of being cautious when applying its own judgments rendered prior to the Supreme Court decisions in Vivendi and Infineon.

Finally, the QCCA noted that prescription is not always a mean of defence that ought to be ruled upon at the authorization stage. In the case at hand, the QCCA concluded that the petitioner’s argument that it had been impossible in fact for him to institute legal proceedings earlier was a question of fact that had to be dealt with at a later stage.

Justice Marcotte’s Partial Dissent

While she would also have authorized a class action against the Congregation, Justice Marcotte dissented as to the second respondent, the St-Joseph Oratory, in light of the absence of any compelling evidence of a link between the Congregation, its members and the Oratory:

“[136] I cannot convince myself that merely alleging that the abuse could have taken place at the Oratory is sufficient to engage its responsibility, in the absence of some allegation of fact that could support a direct fault on its part or a fault committed by one of its attendants, or of its knowledge of the abuse suffered by the minor children under the control of the members of the Congregation and a failure to act.

[137] The mere fact that the Oratory is administered by members of the Congregation does not allow for the establishment of some fault on its part towards the victims of the sexual assault committed by members of the Congregation. The Oratory rightly maintains that it is a separate entity with the mission of operating and maintaining this place of worship. Its responsibility cannot be engaged for the actions of members of the Congregation over whom it has no authority.” (our translation)

Moreover, Justice Marcotte heavily criticized class counsel for their “improvised” approach in drafting their application:

“[139] … I think it should be added that it would be desirable for lawyers in this context to take the necessary steps to facilitate the verification of the criteria that may give rise to an application for authorization under section 575 CCP by filing clear and well-structured applications.

[140] In this case, the Application is characterized by its poor drafting, particularly with regard to the alleged misconduct of the respondents in relation to the other minor victims. And what to say of the rather improvised approach of the lawyers, who have filed a list of anonymous victims as Exhibit R-8 when pleading the application for authorization, while acknowledging that they have not checked its content. This seems to have largely contributed to the judge’s decision to refuse the authorization sought.

[141] The difficulties of managing a class action of this magnitude must not be obscured, especially when it is instituted on the basis of an imprecise or incomplete application, and it is also worth noting that once authorized this action will involve the mobilization of significant judicial resources.” (our translation)

Our Comments

Although the QCCA maintains its liberal approach towards authorization of class actions, the dissenting opinion of Justice Marcotte contains helpful comments that could be used in other cases and serve as a reminder that there are limits to the lenient approach. Justice Marcotte also sends a strong warning to class counsel and exerts them to carefully draft the factual allegations contained in applications for authorization.

Significantly, Justice Marcotte insists on the fact that once a class action is authorized, plaintiffs still have to abide by the normal substantive rules governing burden of proof and evidence and that fault, causation and damages must be established with respect to each and every class member. According to Justice Marcotte, this will not be an “easy task” in the case at hand considering, amongst other things, the size of the proposed group” (paras. 142-143, our translation).