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Canadian Class Actions Monitor

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Which way are the class action winds blowing in B.C.?

Posted in Certification, Class Actions

Since B.C. enacted its Class Proceedings Act in 1996, B.C. has been viewed as a certification-friendly jurisdiction, with certification rates approaching 100% in some years.  What do the 2015 cases tell us?

Based on a review of reasons from 2015 relating to contested appeals dealing with proposed or certified class actions, as posted on the B.C. Superior Courts website:… Continue Reading

B.C. Class Action Battlegrounds in 2015

Posted in Certification, Class Actions


Although historically the only real battle ground in B.C. class actions was certification, the new reality is more complicated.


There continue to be some cases in which pre-certification issues are a battle ground, including, for example, where defendants seek a stay based on jurisdiction or apply to have pleadings struck. The state of the law is now that certification is to be the first procedural hearing except where a motion is time-sensitive, would benefit the parties, furthers the objective of judicial efficiency or has the potential to dispose of the litigation (Tucci v. Peoples Trust, 2015 BCSC 987).… Continue Reading

Defendants Continue to have Success with the Pleadings and Identifiable Class Requirements

Posted in Certification, Class Actions

The trend showing a more rigorous application of the certification criteria in B.C., particularly in respect of the pleadings and identifiable class requirement, has continued with the B.C.S.C.’s reasons for judgment in Unlu v. Air Canada, 2015 BCSC 1453.

In this set of cases, individual representative plaintiffs had purchased tickets for international air travel from each of five different defendant airlines. The tickets included amounts described as airfare as well as variously described taxes and fees, which included amounts for fuel surcharges. The five actions alleged that the manner in which fuel surcharges are displayed and described on passengers’ ticket receipts amounts to a deceptive act or practice contrary to the Business Practices and Consumer Protection Act (the “BPA”).… Continue Reading

“A Mirage of Judicial Economy” – BCSC Applies a More Rigorous Preferability Analysis

Posted in Certification, Class Actions

Mr. Justice Funt has refused to certify Vaugeois v. Budget Rent-A-Car of BC Ltd., 2015 BCSC 802 on the basis of preferability.  This is a welcome result in the wake of AIC Limited v. Fischer, 2013 SCC 69 discussed in an earlier blog HERE.

In this case, the plaintiffs alleged that the defendants, Budget Rent-A-Car of B.C. Ltd. and Inland Transportation Ltd., “engaged in a systematic scheme whereby consumers renting motor vehicles from Budget’s various car rental branches [in B.C.] were improperly charged or over-charged for body and window glass repairs.”… Continue Reading

No Ads for the Other Side: Limits on the Nature of Notice to be Given to Class Members

Posted in Certification, Class Actions

Once an action has been certified as a class action, notice of certification is required to be given to the class.  There are statutory requirements that govern the matters to be addressed in such notices, but the courts have responsibility for approving their form, content and distribution scheme, as well as who pays for them.

Bartram et al. v. GlaxoSmithKline Inc. et al

In a recent B.C. case, the representative plaintiffs had obtained a certification order against two GlaxoSmithKline Inc. entities in respect of an action alleging that their antidepressant drug Paxil caused cardiovascular defects in children born to women who took the drug during pregnancy, of which the defendants failed to provide adequate and timely warning.  … Continue Reading

Filing Defences Prior to Certification: a More Nuanced Practice?

Posted in Class Actions

The common practice of deferring the filing of a statement of defence, in B.C. the Response to Civil Claim, in a proposed class action until after the action has been certified has again attracted judicial criticism.

In 2011 and 2012 respectively, Mr. Justice Perell of the Ontario Superior Court, criticized this practice in Pennyfeather v. Timminco Ltd., 2011 ONSC 4257 (CanLII) and Labourers’ Pension Fund of Central and Eastern Canada (Trustees of) v. Sino-Forest Corp., 2012 ONSC 1924 (CanLII).

In January of 2015, Mr. Justice Myers of the British Columbia Supreme Court voiced his criticism of the practice in Pro-Sys Consultants Ltd.… Continue Reading

Undisclosed Fees Continue to Attract Class Actions

Posted in Certification, Class Actions

The Marcotte case, a Quebec class action against several financial institutions in relation to allegedly undisclosed currency conversion fees, was the subject of recent reasons by the Supreme Court of Canada.  Our blog on that case is available HERE.  Marcotte is not alone: financial institutions and the fees they charge, particularly where it may be alleged that such fees have not been adequately disclosed, remain big business for class actions plaintiffs.

In the recently released decision of Sandhu v. HSBC Finance Mortgages Inc. et al (reasons available HERE), the British Columbia Supreme Court has certified an action seeking damages or restitution from HSBC Finance Mortgages Inc.… Continue Reading

Historic Class Action Settlement and Distribution Protocol

Posted in Class Actions, Competition, Settling

The final settlements were approved yesterday in a series of settlements that represent the second-largest recovery in Canadian competition class action history.  Pro-sys Consultants Ltd. v. Infineon Technologies AG et al, 2014 BCSC 1936 alleged a price-fixing conspiracy among international manufacturers of dynamic random access memory (DRAM), a semiconductor memory product that provides high speed storage and retrieval of information found in computers, servers and other electronic equipment.  The class includes purchasers at all levels of the distribution chain.  Analogous proceedings were also brought in Ontario and Quebec.… Continue Reading

Must-Have New Text on Quebec Class Actions

Posted in Class Actions

Class Actions in Quebec: Notes for Non-Residents, written by McCarthy Tétrault counsel and noted class actions author Shaun Finn, is an accessible, easy-to-read book that explains to business people, in-house counsel and non-specialists how class actions work in Canada’s second-largest province and legal market.

Because defendants from across North America and the world are brought before the courts of Quebec in the context of class proceedings, it is vital that they understand the rules of the game. These rules, which differ from those of every other jurisdiction, are key to making sensible strategic decisions from the outset.

With its civilian legal tradition, linguistic specificity and codified procedural scheme, Quebec constitutes a unique challenge to non-residents.… Continue Reading

A Rare Decertification Decision from the BCCA Stands: No Leave to Appeal Wakelam

Posted in Certification, Class Actions

The Supreme Court of Canada yesterday refused the plaintiff’s application for leave to appeal the British Columbia Court of Appeal’s decertification decision in Wakelam v. Wyeth et al.  Wakelam is a claim against various manufacturers of children’s cough and cold medication for relief due to the manufacturers’ sale of the medicines prior to a Health Canada order requiring such medicines not be marketed for children under six years of age and requiring re-labelling to that effect.  The case was certified in 2011.… Continue Reading

Trends in US Class Actions: More Consumer Class Action Settlements and more Privacy Cases

Posted in Class Actions, Settling

A study by NERA Economic Consulting released July 22, 2014 shows that consumer class action settlements in the US have increased steadily over the past four years (the “Study Period”).  The study also showed that cases relating to privacy violations, specifically cases relating to SPAM and to improper use of personal information, increased significantly over the Study Period.… Continue Reading

Cy-Pres Awards: Achieving the Goals of Class Actions?

Posted in Awards and Recognitions, Class Actions

In the first set of class action decisions handed down by the Supreme Court of Canada, the Court stated that the advantages of class actions are “access to justice”, “judicial economy” and “behaviour modification”.[1]  These advantages, often described as the goals of class actions, have been used in innumerable class action decisions since 2001.  It remains difficult to say what role these advantages or goals really play in class actions.

A case in point is the phenomenon of cy-pres awards.  Cy-pres (“as near as”) awards are used when it is too costly, or impossible, to identify all members of a class or to distribute a settlement fund directly to class members. … Continue Reading

The Role of Plaintiffs’ Counsel in Class Actions

Posted in Class Actions

How does the role of plaintiffs’ counsel in a class action differ from the role of plaintiff’s counsel in ordinary litigation faced by a business enterprise?

At the most fundamental level, a business enterprise that has been named as a defendant in a class action needs to understand that the real adversary is the plaintiffs’ lawyer rather than the plaintiff.

Canadian class action statutes have clearly established the plaintiffs’ lawyer as the agent by which the goals of class action legislation are to be realized.  Provisions governing the financing of class actions and the remuneration of class counsel are intended to, and result in, plaintiffs’ lawyers seeking out potentially actionable claims.… Continue Reading

What do US Class Action Decisions Mean for Canada?

Posted in Certification

Recently, there was extensive media coverage of a US district court’s refusal to certify a proposed privacy class action against Google (see one such article HERE).  The case alleged that Google had intercepted and read users’ emails, and mined the content of those emails for targeted advertising.  Plaintiff’s counsel had argued that the case could give rise to the highest award of damages in any class action, anywhere, to date.

Does the US court’s refusal to certify mean no such case will be filed or certified in Canada?

The US court’s refusal to certify the action in the US certainly makes a Canadian class action less likely. … Continue Reading

2013 Trends in US Securities Class Actions

Posted in Class Actions, Cross-Border, Securities

A recent report reveals some interesting trends in US securities class actions.  “Securities Class Action Filings – 2013 Year in Review”, a report by Cornerstone Research and the Stanford Law School Securities Class Action Clearinghouse (available HERE) notes that although plaintiffs filed 9% more securities class actions in 2013 than were filed in 2012, the 2013 total is still 13% lower than the average from 1997 to 2012.

The report’s authors look at a variety of related statistics:

There are now fewer listed companies to sue, given the decline in the number of companies listed on the NYSE and NASDAQ (down 46% since 1998); There is a recent increase in initial public offerings on major US exchanges (more in 2013 than in the five years previous); and There is an increase in larger companies undertaking initial public offerings.… Continue Reading

B.C. Court of Appeal De-Certifies: Two Findings to Watch

Posted in Appeals, Certification

In B.C.’s first certification decision of 2014, and despite several very recent pro-certification rulings from the Supreme Court of Canada, defendants obtained a de-certification order.  In light of B.C.’s pro-certification bent (see my earlier blog on this issue HERE), this is significant.

The case, Wakelam v. Wyeth et al. (cited and reviewed in more detail by my colleague, Brandon Kain, HERE), is a claim against various manufacturers of children’s cough and cold medication for relief due to the manufacturers’ sale of the medicines prior to a Health Canada order requiring such medicines not be marketed for children under six years of age and requiring re-labelling to that effect. … Continue Reading

Is B.C. Canada’s New Class Actions Haven?

Posted in Product Liability, Trends

For many years, Canadian class actions lawyers could agree that Quebec was clearly the Canadian class actions haven, the province most encouraging of class action plaintiffs and their cases.  Though a case can still be made for Quebec, British Columbia is now giving Quebec a run for its money. Consider the following:


B.C.’s Class Proceedings Act provides a no-cost regime at certification. In recent years, B.C.’s certification rate for cases with published reasons has approached 100%. For example, in two recent product liability cases involving the same product, certification was refused in Quebec but granted in B.C.  (MacMillan v. Abbott Laboratories, 2012 QCCA 1684, aff’d 2013 QCCA 906 and Charlton v.… Continue Reading

Canadian Class Actions: What’s Hot?

Posted in Trends

Current class actions, newly filed or ongoing, commonly address the following areas:

Privacy breaches. These cases focus on defendants’ alleged collection and use or accidental release of customer information. Competition Act breaches. These cases focus on defendants’ alleged price fixing, misleading advertising, monopolization or tied selling activities. Class actions can be, and are being, brought by plaintiffs who are the ultimate consumers of a product that combines ingredients alleged to have been price fixed and non-price fixed products. Product liability. These cases focus on plaintiff customers’ allegations that the defendants’ products are defective and caused injury to the plaintiffs, including in the wake of a product recall.… Continue Reading

Is Your Company a Class Actions Target?

Posted in Competition, Defence

The answer, of course, is yes – if your company does business in Canada, it is almost by definition a target for entrepreneurial plaintiff-side class actions lawyers.  This is particularly true if your company does business in one of Canada’s class actions havens, like the province of British Columbia.

The better question is whether or not your company is a “high-risk” class actions target.

Your company may be a “high-risk” target if any of the following apply to it:

your company, or a related company, has been the subject of a class action in the U.S. or elsewhere in Canada.  Canadian plaintiff-side class actions lawyers make excellent use of precedent proceedings (and settlements) – in fact, in many cases, Canadian plaintiff-side class actions lawyers enter into formal collaborations with their U.S.… Continue Reading