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Canadian Class Actions Monitor

Category Archives: Class Actions

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A Most Dysfunctional Application

Posted in Class Actions

The recent decision Baratto v. Merck Canada Inc. presents a rare occasion where the Superior Court of Québec refuses permission to institute a class action lawsuit. The plaintiff, who suffered from depression and erectile dysfunction, claimed his problems were caused by medication produced by the defendant. Based on the Court’s analysis of the facts, the plaintiff could not properly advance the rights of the class he sought to represent, which the Court characterised as poorly defined. The Court also considered the plaintiff’s medical history, which was riddled with alternative possible causes of his problems, and determined that the plaintiff’s claims could not justify the conclusions sought.… Continue Reading

On Limitations: Alberta Court Reiterates Importance of Reasonable Diligence to Identify Defendants in Class Proceedings

Posted in Class Actions

In Condominium Corporation No 0610078 v Pointe of View Condominiums (Prestwick) Inc (“Condo Corp 0610078”), the Alberta Court of Queen’s Bench (“ABQB”) considered the extent to which a party that suffered damage is required to identify the parties responsible for that damage for the purpose of triggering the commencement of the limitation period in the context of a certified class proceeding.[1]

Background

The representative plaintiffs in Condo Corp 0610078 brought an application to amend their claim to add certain defendants. The certified class action claims $2.7 million in damages for the cost of repairs and remediation resulting from a condominium’s construction deficiencies.… Continue Reading

Amending certification applications: When does the “procedural guillotine” fall?

Posted in Class Actions

In recent certification decisions, BC courts have demonstrated a willingness to permit plaintiffs to amend their materials and re-apply for certification, often with substantial guidance from the court on the scope of the amendments. In Winter v. British Columbia, the BC Supreme Court once again permitted such a re-drafting, though in this case imposing a strict time limit and indicating that this would be the plaintiff’s final opportunity to amend.[1]

Winter is a potential class action involving former employees of the British Columbia College of Teachers. In January 2012, the Province dissolved the College and replaced it with the Teacher Regulation Branch of the Ministry of Education.… Continue Reading

Successful Resistance of Certification in a Pharmaceutical Class Action

Posted in Class Actions

In recent years, many pharmaceutical class actions in Canada that have proceeded to a motion for certification have been certified. However, the recent case Batten v. Boehringer Ingelheim (Canada) Ltd.[1] [Batten] is another welcome example of a Canadian court denying certification of a proposed pharmaceutical class action.[2] The case involves the novel oral anticoagulant (NOAC), Pradaxa®.

Despite pleading many causes of action, the plaintiffs pursued only their “failure to warn” claim for certification. The allegation centred around the fact that, for the majority of the relevant time period, Pradaxa® (unlike the pre-existing commonly used anticoagulant, warfarin) did not have a specific antidote that could reverse its anticoagulant effect.… Continue Reading

The Role of Representative Plaintiffs from Other Jurisdictions: An Update

Posted in Class Actions

We previously reported in June 2016, on a Saskatchewan Court of Queen’s Bench decision holding that, in certain circumstances, a representative plaintiff in a multi-jurisdictional class action in a province other than Saskatchewan can (a) adduce evidence and make argument in a certification application in a Saskatchewan class proceeding and (b) apply for a stay of that Saskatchewan proceeding (Ammazzini v Anglo American PLC, 2016 SKQB 53). This decision was based on section 5.1 of The Class Actions Act, which provides generally that a representative plaintiff in a multi-jurisdictional class action commenced in a province elsewhere in Canada involving the same or similar subject-matter “may make submissions at the certification hearing” in the Saskatchewan class proceeding.… Continue Reading

The Québec Court of Appeal confirms the dismissal at the authorization stage of a shareholder class action against the directors and officers of a public company

Posted in Class Actions

In Groupe d’action d’investisseurs dans Biosyntech c. Tsang, 2016 QCCA 1923, the Québec Court of Appeal (Justices Schrager, Dutil and Parent) recently confirmed the decision of the Québec Superior Court to dismiss at the authorization stage a shareholder class action against the directors and officers of a public company.

Background

The Petitioner sought leave to institute a class action on behalf of the shareholders of BioSyntech, a medical device public company that filed for bankruptcy in 2010, against its eight directors and officers. BioSyntech was a biotech start-up and its success rested on its ability to access capital to develop and market a promising medical device, BST CarGel.… Continue Reading

Saskatchewan Court of Appeal Upholds Certification, Finds Attempted Appeal an Abuse of Process

Posted in Class Actions

Summary

The Saskatchewan Court of Appeal recently confirmed that parties don’t get another “bite at the cherry” in Saskatchewan Medical Association v Anstead, 2016 SKCA 143. The Saskatchewan Medical Association’s (the “SMA”) application for leave to appeal on one decision was dismissed; however, the SMA then attempted to appeal a different but related decision using the same grounds of appeal. The Court of Appeal struck the second appeal as an abuse of process.… Continue Reading

Ghost in the Machine – Pure Economic Loss in the Time of Recalls

Posted in Class Actions

Plaintiffs are, in certain circumstances, able to recover pure economic loss caused by the negligent supply of dangerous products from the manufacturers of those products. [1] As long as the defect poses a “real and substantial danger” to persons or property, the plaintiff may recover for lost profits and for the costs of avoiding the danger posed by the defective products.

Generally, however, these product liability cases arise on the supply of the defective products. Is pure economic loss recoverable in the product liability context when a dangerous good is recalled and no longer supplied precisely because it has been identified as dangerous?… Continue Reading

Three Quebec Court of Appeal justices reiterate that a low threshold is to be applied at the authorization stage; one calls for the legislature to rethink the entire authorization process

Posted in Class Actions

In Charles v. Boiron Canada inc., 2016 QCCA 1716, the Quebec Court of Appeal (Justices Bich, Savard and Levesque) again overturned a refusal by the Quebec Superior Court to authorize a class action in a consumer law matter. In brief concurring reasons, Justice Bich wonders whether the authorization process still has any real utility and calls for help from the legislature, in light of recent Supreme Court of Canada precedents.

Background

The case involves a homeopathic product called “Oscillococcinum” (and a version for children called “Oscillo”) marketed as reducing cold symptoms. Although the product is made with 85% sucrose and 15% lactose, studies filed by the respondent manufacturer with Health Canada (which approved the sale of the product) support the positive effects of the product as marketed by the manufacturer.… Continue Reading

Walter v Western Hockey League: Admissibility of Survey Evidence and Pre-Certification Disclosure Requirements

Posted in Class Actions

A proposed class action in Alberta raises the issue of whether Western Hockey League (“WHL”) players are employees and should be paid a salary in accordance with employment standards legislation.[1]  Two decisions decided in that proposed class action consider interesting issues regarding the admissibility of certain interview evidence (the “Admissibility Decision”)[2] and the plaintiff’s entitlement to financial disclosure prior to certification (the “Financial Disclosure Decision”).[3]

Background

The proposed representative plaintiff, Lukas Walter, is a former WHL player for the Tri-City Americans. The WHL and its umbrella organization, the Canadian Hockey League (“CHL”) are both named as defendants in the proposed class action, as are the owners of the individual WHL and CHL teams.  … Continue Reading

Victory for a Healthcare Company in the First Pharmaceutical Product Liability Class Action Trial in Canada

Posted in Certification, Class Actions

On October 19, 2016, the Superior Court of Québec released the first ever decision of a Canadian Court ruling on the merits of a pharmaceutical product liability common issues trial. In this decision [2016 QCCS 5083], the Plaintiffs were alleging that the healthcare company was responsible for psychiatric reactions experienced by the class members while taking an antibiotic.

The healthcare company retained McCarthy Tétrault LLP after certification of the class action by the Superior Court of Québec.

Justice Suzanne Hardy-Lemieux dismissed the action, concluding that the Plaintiffs had not met their burden of demonstrating that the antibiotic was the cause of the psychiatric reactions suffered by the class members.… Continue Reading

Araya v. Nevsun Resources Ltd., 2016 BCSC 1856: British Columbia Supreme Court refuses to allow a “common law class action” alleging human rights violations at Eritrean mine

Posted in Class Actions

In an important decision for Canadian resource companies operating abroad, the British Columbia Supreme Court has permitted claims alleging human rights abuses at a mine in East Africa to proceed to trial. In its decision, the Court considered whether British Columbia’s representative proceeding rule could be used in the context of a “common law class action”. Ultimately, the Court held that the plaintiffs did not satisfy the criteria for the rule because they failed to establish that the unrepresented parties had the same interest . The Court also held that the plaintiffs were improperly attempting to circumvent the residency requirement of the Class Proceedings Act.… Continue Reading

Beaten to the Punch: Ontario Court of Appeal considers carriage motion in Mancinelli v Barrick Gold

Posted in Class Actions

In Ontario, as in other provinces, only one class action may be certified in the same jurisdiction representing the same class in relation to the same claim.[1] Where rival actions exist, the proposed representative plaintiffs must bring a “carriage motion” to determine the action that will proceed on behalf of all class members and the actions that will be stayed or consolidated.

A recent Ontario Court of Appeal decision, Mancinelli v Barrick Gold, 2016 ONCA 571, considers which group of law firms should have carriage over a multi-billion dollar securities class action that, if certified, would become one of the largest in Canadian history.… Continue Reading

Cutting Ties: Supreme Court of Canada lays foundation for judges to roam when managing national class actions

Posted in Class Actions

The Supreme Court of Canada recently released its decision in Endean v. British Columbia and the companion case of Parsons v. Ontario: 2016 SCC 42.[1]  The Court’s decision articulates a framework for the superior courts to conduct an extraterritorial hearing in the interest of managing a national class action.  Yet the Court left many thorny issues untouched.  Because this was a case in which personal and subject matter jurisdiction were conceded, there was no need to tackle the difficult questions raised by decisions like Meeking v. Cash Store Inc., 2013 MBCA 81.[2]  We will have to wait for clarity on the circumstances in which deference is owed to the result of a class proceeding in another jurisdiction.… Continue Reading

Think Fee Agreements are Privileged? Think Again: Alberta Court Affirms Privilege Over Fee Agreements More Easily Overcome in Class Proceedings

Posted in Class Actions

In LC v Alberta (“LC”), the Alberta Court of Queen’s Bench considered a defendant’s application for the production of contingency fee agreements.[1]  In his reasons, Graesser J. reinforced that privilege over retainer agreements in a class proceeding is more easily overcome than in other types of proceedings.

 

Relevant Facts

Following certification of the class proceeding in LC, counsel for the representative plaintiff, Mr. Lee (“Lee”), brought an application for advance costs in the amount of $1.7 million.[2]  In response to the advance costs application, the defendant, Her Majesty the Queen (“HMQ”), sought and applied for the production of all contingency fee agreements.… Continue Reading

Third time’s the most inefficient: Another call for national class actions reform in McKay v. Air Canada, 2016 BCSC 1671

Posted in Class Actions

McKay is one of three potential class actions brought in B.C., Ontario, and Quebec respectively, arising from cargo fees charged by certain airlines. Counsel for the proposed class representative in each action worked co-operatively and focused on the Ontario action, which was certified in Airia Brands v. Air Canada, 2015 ONSC 5352. The Ontario Superior Court subsequently approved a distribution protocol respecting settlement funds. Counsel for the proposed class representative in McKay then sought the B.C. Supreme Court’s approval of a similar distribution order.

The application was heard by Chief Justice Hinkson, who began his reasons for judgment with a review of Canada’s national class actions regime—or lack thereof.… Continue Reading

News from Quebec on Joint Experts: Superior Court says no to an application for the appointment of a single expert regarding the assessment of damages subject to collective recovery in a Class Action

Posted in Class Actions

In Masella v. Toronto-Dominion Bank Financial Group, 2016 QCCS 4450 (“Masella”), the Quebec Superior Court (Justice David Collier) ruled on an application by the class’ representative plaintiff to appoint a joint expert to assess the total amount of compensatory and punitive damages allegedly owed by the defendant following an increase of the variable annual interest rate (VAIR) on the members’ home equity lines of credit (HELOCs). The Court agreed with the defendant and dismissed the application, allowing each party to retain its own expert(s) regarding the calculation of the alleged damages.

Background

The class action was authorized (certified) on January 15, 2016 by the Quebec Court of Appeal (reversing the Superior Court).… Continue Reading

Class Actions against the Government – Key Lessons from the Ontario Superior Court’s decision of Johnson v Ontario, 2016 ONSC 5314

Posted in Class Actions

On August 23, 2016, Justice Grace released his decision, Johnson v. Ontario,[1] certifying a class of inmates in their action against the Ontario Government. The plaintiff class claims against the Ontario Government for systemic negligence, assault, battery, breaches of fiduciary duty and breaches of sections 7 and 12 of the Canadian Charter of Rights and Freedoms. Johnson is one of a long line of institutional abuse cases certified in Canada and has implications for class actions against governments alleging systemic wrongdoings.

The action arises out of facts reminisce of HBO’s latest series “The Night Of”, a crime drama that explores the institutional issues within the United States’ prison system.… Continue Reading

Class Action Filed in Relation to BC’s Foreign Buyer Tax

Posted in Class Actions

A proposed class action has been filed a mere six weeks after the BC government introduced amendments to the Property Transfer Tax Act to impose an additional 15% tax on the purchase of residential properties by foreign entities in the Greater Vancouver Regional District (the “Foreign Buyer Property Tax”).  This legislation, and the issue of foreign buyers in Vancouver, has received significant news coverage in the local and national media. This case is a prime example of a company/entity being at a high risk of being a class action target where it has received significant publicity/news coverage.… Continue Reading

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

When Will a Court Lift a Statutory Stay to Permit A Class Action to Proceed?

Posted in Class Actions

Both the Bankruptcy and Insolvency Act (“BIA”)[1] and the Companies’ Creditors Arrangement Act[2] stay actions and remedies as against debtors. However, creditors may apply to lift the stay to pursue a proposed class action. The recent decision of the Alberta Court of Queen’s Bench in Da Silva v River Run Vistas Corporation (“Da Silva”)[3] considered the framework for when a court may lift such a statutory stay so that a proposed class action may proceed.

Background

In Da Silva, the plaintiff for a proposed class action brought an application to lift a BIA stay in respect of two bankrupt defendants who were the directors, officers, shareholders, and operating minds of corporations promoting and developing a real estate development project (the “Project”) in Alberta.… Continue Reading

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

Passivity can be Your Enemy: Update from Quebec’s New Rules of Procedure and their Potential Impact on Class Actions

Posted in Class Actions

The new Québec Code of Civil Procedure (the “CCP”) has now been in force for eight months. Among the new tools available to ensure “proportionality” and “speediness” in proceedings, s. 234 of the CCP allows the judge to appoint one or more qualified experts to provide expert evidence deemed “necessary in order to decide the dispute”.  There has been much speculation in the Quebec legal community about the so-called “single expert” and the context and the type of files in which judges would agree to use their intrusive new power.  Most practitioners expected (or hoped) that it would be confined to smaller cases.… Continue Reading

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

Posted in Certification, Class Actions

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.… Continue Reading