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Category Archives: Appeals

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Silvercorp Metals: Ontario Court of Appeal confirms robust test for leave in securities class actions and affirms costs award

Posted in Appeals, Certification, Class Actions, Securities

Silvercorp Metals: Ontario Court of Appeal confirms robust test for leave in securities class actions and affirms costs award[1]

The Ontario Court of Appeal recently released an important decision in a securities class action that (1) summarized the law with respect to the “robust” statutory screening mechanism which plaintiff investors must meet, (2) affirmed a significant costs award against the unsuccessful investor. On August 24, 2016, the Ontario Court of Appeal released its decision in Mask v. Silvercorp Metals Inc. (“Silvercorp”),[2] an appeal from a refusal to grant leave to proceed to a secondary market class action. In the wake of the Supreme Court’s recent[3] decisions[4] in secondary market cases, the unanimous decision dismissing the appeal confirms that the robust screening mechanism of a leave to proceed motion permits weighing of competing factual and expert evidence.… 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

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.… 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.… Continue Reading

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)

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.… Continue Reading

Good to go: Court adopts flexible approach to reformulating classes on certification appeal

Posted in Appeals, Case Comments, Certification, Class Actions

On April 6, 2016, the Ontario Court of Appeal (the “OCA”) released its decision in Good v. Toronto (Police Services Board) (“Good“). The case concerns the certification of a proposed class in a proceeding arising from events surrounding the G20 Summit held in Toronto in June 2010. The proposed class consisted of individuals who were detained at various locations in the city as police attempted to control protests and demonstrations. The decision has important implications for the court’s treatment of proposed class actions that are reformulated in the appellate process, and demonstrates the court’s flexible approach to the certification criteria under s.… Continue Reading

Ontario Court of Appeal Inspiring Consumer Misrepresentation Class Actions

Posted in Appeals, Case Comments, Class Actions

The Ontario Court of Appeal is once again making headlines with the case of Ramdath v George Brown College, which has turned out to be a doubly significant case at the intersection of class actions and consumer protection legislation.

The case first captured attention in 2013 when the Ontario Court of Appeal confirmed that students are “consumers” and education a “consumer product”, and that consumers do not need to prove reliance on a false, misleading or deceptive representation to establish an unfair practice and a right to a remedy. Now in its most recent decision, the Court went further still—confirming the Consumer Protection Act[1] does not require any reliance on or even knowledge of the unfair practice and also that corrections of an unfair practice will be too late and of no effect if done after a consumer makes an agreement to purchase.… Continue Reading

Ontario Court of Appeal Dismisses Pet Valu Class Action, Clarifies the Scope of the Duty of Good Faith and Fair Dealing and Calls for Greater Judicial Restraint

Posted in Appeals, Case Comments, Class Actions

The recent decision of the Ontario Court of Appeal in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2016 ONCA 24 clarifies and narrows the scope of the duty of good faith and fair dealing imposed on franchisors under section 3 of the Arthur Wishart Act (Franchise Disclosure) (“AWA”) and expressly cautions against zealous judicial intervention in the framing and amendment of common issues in class action proceedings.

Read more in the original post by our colleagues at Canadian Appeals Monitor, McCarthy Tétrault’s blog focusing on information and commentary on upcoming and recent Appeal Court decisions.

 … Continue Reading

Ontario Court of Appeal Clarifies Definition of “Promoter”

Posted in Appeals, Case Comments, Class Actions

In Goldsmith v. National Bank of Canada,[1] the Ontario Court of Appeal clarified the definition of “promoter” in the context of a proposed secondary market class action under Part XXIII.1 of the Ontario Securities Act.[2] The decision provides comfort to financial institutions and others in the capital markets that deliver traditional commercial lending and investment advisory services to public companies. Further, it provides useful guidance for prospectus filing requirements for issuers and others involved in the creation or reorganization of an issuer’s business.

Read more in the original post by our colleagues at McCarthy Tétrault.… Continue Reading

Setting Limits: The Supreme Court Confirms a Robust Gatekeeper Approach to Secondary Market Liability Actions

Posted in Appeals, Case Comments, Class Actions, Securities

In a much anticipated decision, the Supreme Court released its rulings in three Ontario securities class actions on December 4, 2015: Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (“Green”). This trilogy of secondary market class actions has been discussed extensively in previous postings on this blog (see this blog’s discussion of the Ontario Court of Appeal decisions, in the Top Ten Appeals to Watch in 2015 and in the SCC Monitor after the appeals were argued at the Supreme Court).

Read more in the original post by our colleagues at Canadian Appeals Monitor, McCarthy Tétrault’s blog focusing on information and commentary on upcoming and recent Appeal Court decisions.… Continue Reading

Target Acquired on appeal? Class action not dead yet.

Posted in Appeals, Class Actions

On March 23, 2015, the Superior Court of Québec (per Justice Pinsonnault) granted a motion by Defendant Target Corp. to dismiss a proposed class action related to the 2013 data breach. Justice Pinsonnault dismissed the proposed class action on the grounds that the Courts of Québec lacked jurisdiction.

The Court of Appeal has now overturned the dismissal and sent the matter back before the Superior Court for a determination on the question of whether the class action should be authorized. By decision dated November 6, 2015 (Zuckerman c. Target Corporation, 2015 QCCA 1809), the Court of Appeal (per Justices Bich, Savard and Schrager) ruled that the dismissal for lack of jurisdiction was improper and the motion for authorization must be heard.… Continue Reading

Screening Secondary Market Liability Actions: the Supreme Court Raises the Bar for Plaintiffs

Posted in Appeals

On April 17, 2015, the Supreme Court of Canada (SCC) rendered its opinion in Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18 (Theratechnologies), its first decision on the Quebec statutory secondary market liability regime adopted in 2007 pursuant to a reform of the Quebec Securities Act (QSA). Like its sister statutes in other provinces, although the QSA regime facilitates a plaintiff’s burden, mostly by presuming that variation in market price is linked to a misinformation or omission, it also imposes an authorization process under which a claimant must establish that its action is brought in good faith and has a reasonable possibility of success.… Continue Reading

Is the Supreme Court of Canada becoming disinterested in class action appeals?

Posted in Appeals, Class Actions

On March 26, 2015, the Supreme Court of Canada refused to grant leave to appeal in Kaynes v. BP, Plc, a proposed class action for secondary market misrepresentation against the respondent, BP. The refusal leaves in place the Ontario Court of Appeal’s judgment, which held that Ontario courts should decline jurisdiction over claims by Canadian residents who purchased shares on foreign exchanges because foreign courts were better positioned to decide those cases. The decision put a damper on recent enthusiasm for global securities class actions.… Continue Reading

Summary of Société Financière Manuvie v. Dominic D’Alessandro and others

Posted in Appeals, Case Comments, Class Actions

Confidential, but relevant: documents provided to OSFI must be communicated

A.          Overview of the Appeal

The appellant Manulife appealed against an interlocutory judgment rendered on May 7, 2014 by the Superior Court, District of Quebec (Justice Alicia Soldevila), dismissing its objection to the communication of documents based on an alleged statutory immunity found at sections 2 and 3 of the Supervisory Information (Insurance Companies) Regulations (SOR/2001-56) (the “Regulation”). Justice Soldevila thus ordered the communication of four (4) non-redacted documents and fifty-seven (57) other documents, mainly on the basis that notwithstanding their “confidential nature”, these documents appeared relevant to the issues to be debated on the merits.… Continue Reading

SCC Maintains Permissive View of Quebec Class Actions and confirms the Consumer Protection Act applies to Bank Conversion Charges

Posted in Appeals, Class Actions

In Bank of Montreal v. Marcotte, 2014 SCC 55, the Supreme Court dismissed appeals brought by various banks contesting the applicability of the Quebec Consumer Protection Act (“CPA”) to conversion charges charged by banks of foreign currency transactions. The Court concluded that certain disclosure provisions of the CPA did apply to the conversion charges in issue.  The Court rejected the applicability of the doctrines of inter-jurisdictional immunity and paramountcy invoked by the banks.  The Court concluded that section 12 CPA had been breached (giving rise to a reduction in obligations and punitive damages). The Court also held that a representative plaintiff need not have a cause of action against each of the named defendants, that collective recovery and punitive damages are both available, and that punitive damages may be awarded if the impugned behaviour was “lax, passive or ignorant with respect to consumers’ rights.”… Continue Reading

SCC Shows Continued Interest in Class Actions Issues

Posted in Appeals, Class Actions

The Supreme Court of Canada has granted leave in a case regarding the appropriate burden of proof to authorize an action under the Quebec civil liability for a secondary market disclosure scheme.

On February 20, 2014, the Supreme Court of Canada granted an application for leave to appeal filed by Theratechnologies Inc. and two of its administrators in a securities class action filed by a disgruntled shareholder who had lost monies because of the Issuer’s alleged omission to properly inform its shareholders of a material change in the Issuer’s operations.

Theratechnologies inc. c. 121851 Canada Inc., 2013 QCCA 1256 concerns the interpretation of s.… Continue Reading

Class Action Appeal Decisions to Come in 2014

Posted in Appeals

There are at least two interesting class action appeals coming up in 2014. Of interest to those involved in areas of business within federal jurisdiction, the Supreme Court will hear the Marcotte trilogy (Fédération des caisses Desjardins du Québec c. Marcotte, Bank of Montreal, et al. v. Réal Marcotte, et al., and Amex Bank of Canada v. Adams, et al.) in February, to consider whether provincial consumer protection legislation can extend to areas that would seem to be the subject of federal jurisdiction (in these cases banks, for invoicing credit card customers with foreign currency conversion charges allegedly in breach of Quebec consumer protection legislation).… Continue Reading

National Assembly of Quebec allows appeal (with leave) from decisions certifying a class action

Posted in Appeals

On February 17, 2014, a committee of the National Assembly of Quebec has adopted a modification to Bill 28 (An Act to establish the new Code of Civil Procedure) by which the upcoming new rules of procedure for Quebec will now allow appeals (with leave) from decisions certifying class action.  Such appeals (with or without leave) have always been forbidden in Quebec, thus creating an asymmetric regime for appeal of certification decision: petitioners could always appeal as of right a decision denying certification, while defendants could never appeal a decision certifying (in total or in part) a class action.  This will now change when the new rules of procedure will be formally adopted and come into force (later this year or in 2015). … Continue Reading

2013 U.S. Class Action Decisions with the Potential to Affect Canadian Class Actions

Posted in Appeals, Certification, Competition, Securities

Outside of Canada, there were several appeal decisions from the U.S. Supreme Court in 2013 that may well prove to have an impact here in Canada.

In regards to class action waiver clauses, a six justice majority of the U.S. Supreme Court held, in American Express Co. v. Italian Colors Restaurant, that the Court could not invalidate an express class action waiver in an arbitration agreement and so the claims should be continued by arbitration (although, the three remaining justices handed down a very strong dissent). This is an issue that has had little comment so far in Canada and has yet to be considered by our own Supreme Court. … 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

Overtime Class Actions Move Forward in 2013

Posted in Appeals, Certification

Canadian employers continue to watch as class actions regarding employees’ claims for “overtime” compensation move forward.  Although overtime class actions are relatively new to Canada, 2013 saw developments in the area.

Ontario’s Court of Appeal allowed the certification in two cases in 2012 (Fulawka and Fresco); and on March 21, 2013 the Supreme Court of Canada denied leave to appeal those decisions; meaning those class action claims may now proceed towards trial.  The Ontario Court of Appeal granted leave to appeal a Superior Court’s decision to deny certification in the Brown v. CIBC overtime claim, which could lead to certification being granted in 2014. … Continue Reading

Important Canadian Class Action Appeal Decisions of 2013

Posted in Appeals

There were a number of important appeal decisions in Canadian class action cases in 2013 in which determined a variety of interesting issues in securities law, competition law, consumer protection actions and the problem of individual (vs. common) issues.

First, in the securities law realm, the Supreme Court rendered its much-anticipated decision in AIC Limited v. Fischer, the mutual fund “market timing” case, settling the issue that private class actions can co-exist with securities regulatory enforcement proceedings and that settlement of a regulatory proceeding does not preclude certification of a class action on behalf of the same class of investors who received compensation through the regulatory process.… Continue Reading