The answer is yes. On April 6, 2017, in a novel case, the British Columbia Supreme Court held that a conventional or individual action can be converted into a class proceeding by amending the claim to invoke the provisions of the British Columbia Class Proceedings Act. Such orders are discretionary. While the issue is novel in B.C., amendments converting an action to a class proceeding had been permitted in Ontario and Saskatchewan. The case is significant for defendants in litigation who may think they are not at risk for being the target of a class proceeding if an individual claim (or claims) on the same issue has already been commenced.… Continue Reading
On January 23, 2017 Justice Claudine Roy of the Quebec Superior Court rendered an important decision whereby she refused to approve settlement agreements reached in parallel class actions against financial institutions on the basis that the fees claimed by class counsel, as part of the settlement agreements, were exaggerated. It provides a useful reminder that settlement agreements in class action contexts are not rubber stamped and Courts in Quebec will look carefully at the proportionality of class counsel fees before approving settlements.
This decision was rendered in the context of four parallel class actions, each instituted by Option Consommateurs, against a combination of all major financial institutions in Canada.… Continue Reading
In Anderson v Manitoba, the Manitoba Court of Appeal overturned a decision that had denied class certification of a nuisance claim on the basis that some of the claims did not contain common issues and that a class proceeding was not the preferable procedure. In so doing, the Court of Appeal provided guidance regarding the application of the common issues test in nuisance claims, and confirmed the importance of access to justice as a factor in certifying a class action.
The representative plaintiffs in Anderson are members of four First Nations in Manitoba that were affected by flooding in 2011.… Continue Reading
In Baker v. Rendle, 2017 BCCA 72, the British Columbia Court of Appeal upheld the lower court’s decision denying class certification of a nuisance claim. The Court found that a class proceeding was not a preferable procedure because resolving the proposed common issues would not have significantly advanced the action. The Court’s analysis is specific to claims in nuisance, but suggests that nuisance claims are not suitable for certification unless the defendant’s conduct has a near-uniform impact on the class members.
The Rendles obtained a permit to operate a composting business on their farm and thereafter began to import and compost food waste from the surrounding area.… Continue Reading
In December 2016, the Ontario Court of Appeal had an opportunity to clarify the requirements for certifying a global class in Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP. In a series of decisions over three levels of court, Ontario judges adopted shifting analyses of the global class issue, and a majority of the Court of Appeal appears to have further complicated the law on this issue by using language which suggests that it applied the conventional test for assumed jurisdiction over an individual action to the separate issue of whether to certify a global class. With a strong dissent, the law is ripe for further development in the future.… Continue Reading
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
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.
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
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.
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
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. [Batten] is another welcome example of a Canadian court denying certification of a proposed pharmaceutical class action. 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
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
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.
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
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
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.  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
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.
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
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. Two decisions decided in that proposed class action consider interesting issues regarding the admissibility of certain interview evidence (the “Admissibility Decision”) and the plaintiff’s entitlement to financial disclosure prior to certification (the “Financial Disclosure Decision”).
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
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
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
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. 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
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. 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. 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
In LC v Alberta (“LC”), the Alberta Court of Queen’s Bench considered a defendant’s application for the production of contingency fee agreements. 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.
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. 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
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
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.
The class action was authorized (certified) on January 15, 2016 by the Quebec Court of Appeal (reversing the Superior Court).… Continue Reading
On August 23, 2016, Justice Grace released his decision, Johnson v. Ontario, 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
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