Header graphic for print
Canadian Class Actions Monitor

Category Archives: Case Comments

Subscribe to Case Comments RSS Feed

Access to Justice in “Manageability” of Individual Issues: Appeal Dismissed in Fantl v Transamerica Life Canada

Posted in Case Comments, Certification, Class Actions

In the recent decision of Fantl v Transamerica Life Canada (“Fantl”)[1], 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”[2] when it comes to individual issues.

Background

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.… 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

“Order in the Court!”: Judicial Discretion in Scheduling Applications within Class Proceedings

Posted in Case Comments, Certification

Much can hinge on the order in which applications are heard and decided. A defendant in a prospective class action may save considerable time and money if their motion for summary judgment is determined prior to a plaintiff’s application for certification.

This February, in Keatley Surveying v Teranet, the Ontario Superior Court confirmed that scheduling applications is a matter of judicial discretion in that there is no requirement that applications must be heard in the order they are received or that one type of application must always precede another.[1]… 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

Undisclosed Fee Cases Continue to Attract Class Actions

Posted in Case Comments, Certification, Class Actions

Over the past few years financial institutions and companies in other perceived “deep pocket” industries, like telecommunications, have become targets for class actions in regard to fees charged that are alleged to have not been adequately disclosed. Many of these claims have been grounded in breach of contract and/or breach of consumer protection legislation. Most of these claims have been certified.

We previously reported on this emerging trend in 2014. See previous blog post here: Undisclosed Fees Continue to Attract Class Actions

The trend continues.… 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

195% Dismissed: Apple Defeats Proposed Class Action Concerning Its Liquid Submersion Indicators

Posted in Case Comments, Certification, Class Actions

On October 14, 2015, the Superior Court of Québec rendered a decision refusing to authorize a class action against Apple Canada Inc. and Apple, Inc. (together, “Apple”), declaring the Petitioner’s claim prescribed (i.e. past the limitation period), and despite her allegations that it was Apple’s misrepresentations that had rendered it impossible for her to act in due time (Ohana c. Apple Canada inc., 2015 QCCS 4748).… 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

Pick Your Battles: Defendants in Class Actions Reminded to Leave Detailed Evidence-Based Arguments Out of Certification Motions

Posted in Case Comments, Certification, Class Actions

Among the requirements that must be satisfied before a class proceeding will be certified is that of commonality of issues. Class proceedings statutes in the common law provinces invariably provide that the claims of class members must, in order to sustain a class action, raise common issues.[1]  However, little evidence is needed to establish that the proposed class action satisfies this requirement.  A recent decision of Belobaba J. of the Ontario Superior Court of Justice, Dine v Biomet, 2015 ONSC 7050, serves as a reminder to defence counsel that resistance to certification on grounds of insufficient commonality should primarily focus on the nature of the issue as pleaded and not on detailed evidence that speaks to the merits of the claim.… Continue Reading

Charbonneau Daneau v. Bell Canada, 2015 QCCS 5585

Posted in Case Comments, Class Actions

On June 9, 2014, the Court authorized the institution of a class action against Bell Canada and Bell ExpressVu. It had dismissed the putative class action brought against Bell Mobility because there was no legal relationship between the proposed class representative and Bell Mobility as there was no contract between them.… 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

Ahlquist v. GlaxoSmithKline Consumer Healthcare: pre-certification disclosure in class actions

Posted in Case Comments, Certification, Class Actions

The recent decision of Ahlquist v. GlaxoSmithKline Consumer Healthcare, 2015 SKQB 192, concerns the scope of pre-certification disclosure in class actions.

Ahlquist involved denture adhesives manufactured by GlaxoSmithKline Consumer Healthcare Inc. (“GSK”) and Procter & Gamble Inc. (“P&G”) (collectively, the “Defendants”) and known respectively as “Poligrip” and “Fixodent” (collectively, the “Adhesives”).

Ms. Ahlquist, the representative plaintiff, had used the Adhesives over a prolonged period of time and began experiencing symptoms of a neurological disorder including “pins and needles sensations, numbness in her arms and legs…and sharp bursts of pain.” Ms. Ahlquist alleged that zinc contained within the Adhesives was the cause of her injuries.… Continue Reading

The need for a legal ground to stand on: a shareholders class action is dismissed at the authorization stage for failure to meet article 1003 b) C.p.c. (Groupe d’action d’investisseurs dans Biosyntech c. Tsang, 2015 QCCS 3265)

Posted in Case Comments, Certification, Class Actions

In the spring of 2010, BioSyntech, a start-up biotechnology company, developing a cartilage-repair product, BST-Car Gel, filed a Notice of Intention to make a proposal under the Bankruptcy and Insolvency Act. In the subsequent bankruptcy proceedings, the intellectual property relating to the BST-Car Gel was sold. Vincent Blais, a former shareholder of BioSyntech, filed a motion for authorization to bring a class action on behalf of shareholders and security holders against BioSyntech’s former directors (the “Defendants”) for allegedly causing the company’s “avoidable” bankruptcy by failing notably to bring down the company’s burn rate and to undertake the necessary measures to secure the financing needed to complete a pivotal clinical trial (the “Motion”).… 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

Cybersecurity Governance and D&O liability

Posted in Case Comments

Introduction

The assessment of a corporation’s cyber risks is part of a board of directors’ general risk oversight responsibilities. Since lawsuits, including class actions, are often commenced soon after a data breach, directors and officers should now consider that the board’s oversight of cyber risks may also be closely and thoroughly scrutinized in future litigation and regulatory investigations.

On October 20, 2014, a New Jersey Court dismissed a shareholder derivative suit that sought damages notably from the directors and officers of Wyndham Worldwide Corp. (“WWC”) for several data breaches[1]. This decision is the first decision issued in the US in a shareholder derivative claim arising out of data breaches.… Continue Reading

Dead Again: Court of Appeal makes Clear that Certification of Misclassification Overtime Class Actions Remains as Hard as Ever

Posted in Case Comments, Class Actions

The following post by Elder Marques and Kosta Kalogiros on the Canadian Appeals Monitor blog may be of interest to readers of this blog: Dead Again: Court of Appeal makes Clear that Certification of Misclassification Overtime Class Actions Remains as Hard as Ever

Last week, the Ontario Court of Appeal released its decision in Brown v. Canadian Imperial Bank of Commerce, upholding the Divisional Court’s decision affirming the dismissal of a certification motion in a proposed “misclassification” overtime class action (previously blogged about in the spring and fall of 2013). The appeal decision is of particular interest as “misclassification” overtime class actions (i.e.… Continue Reading

Deemed Reliance in the U.S. Supreme Court

Posted in Case Comments, Class Actions, Securities

The following post on the Canadian Securities Regulatory Monitor blog may be of interest to readers of this blog: Deemed Reliance in the U.S. Supreme Court.

On June 23, 2014 the United States Supreme Court issued its much-anticipated decision in Halliburton Co. v. Erica P. John Fund (“Halliburton”), as issuers and investors in the U.S. (and Canada) wanted to see if the landscape for securities class actions in both countries would be fundamentally changed. The U.S. Supreme Court made only an uneventful change in U.S. law and so our Courts are not likely to see a sudden shift of class actions against cross-listed companies to Canada.… Continue Reading

Multi-Jurisdictional Class Actions: The Creation of Barriers by the BC Court of Appeal

Posted in Case Comments, Class Actions

The following post by Kate Findlay on the Canadian Appeals Monitor blog may be of interest to readers of this blog: Multi-Jurisdictional Class Actions: The Creation of Barriers by the BC Court of Appeal.

In a surprise decision, the British Columbia Court of Appeal has broken with the superior courts of British Columbia, Ontario and Quebec by holding that constitutional limits prevent a superior court judge from sitting outside of his own province. The Court of Appeal’s decision suggests limits to the inherent jurisdiction and discretion of superior courts and will have profound effects upon the ease and efficiency with which judges can hear multi-jurisdictional matters, in particular class actions.… Continue Reading

The Final Word (Again?) On Limitation Periods for Securities Class Actions

Posted in Case Comments, Class Actions, Securities

The following post by Elder Marques and Timothy Chapman-Smith on our Canadian Appeals Monitor blog may be of interest to readers of this blog:

The Final Word (Again?) On Limitation Periods for Securities Class Actions

The Ontario Court of Appeal’s decision in Green represents yet another plaintiff-friendly class action development from the Canadian courts, this time in the context of limitation periods.  Less than two years after its watershed decision in Timminco, Ontario’s highest court reversed itself and in a decision authored by Feldman J.A. re-cast the limitation period regime governing secondary market civil liability under the Ontario Securities Act. … Continue Reading