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Canadian Class Actions Monitor

Category Archives: Trends

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Tonn v. Sears Canada Inc: Dismissing class certification with instructions for future approval

Posted in Class Actions, Trends

The recent British Columbia case of Tonn v. Sears Canada Inc., 2016 BCSC 1081, is an example of a trend in Canadian cases where courts are conditionally certifying class proceedings despite a plaintiff’s failure to define the class as required or dismissing the application with substantial guidance for re-application.[1]

In Tonn, a group of former employees sought to certify a class action against Sears for allegedly terminating their employment without proper severance.[2] In March 2013, Sears sold a division of its business to another company. The majority of the employees in this division obtained employment with the purchasing company and were not paid severance by Sears.… Continue Reading

Adding More Class to Class Action Authorization

Posted in Procedure, Trends

Much has been written or said about the Supreme Court of Canada recent decisions in Infineon Technologies and Vivendi Canada with respect to the low threshold that is imposed on petitioners at the authorization (certification) stage of a class proceeding in Quebec.

Yet in the last two months, the Superior Court of Quebec has rejected two motions for authorization to bring a class action, in part because the petitioners had not sufficiently investigated the nature and composition of the class prior to filing their motions.

Wilkinson c. Coca-Cola Ltd, 2014 QCCS 2631

In Wilkinson, the Petitioner filed a motion for authorization against Coca-Cola, on behalf of all residents of Canada (excluding B.C.… Continue Reading

Hot Off the Press – Doing Business in Canada: Navigating Opportunities for Investment and Growth

Posted in Class Actions, Trends

If your organization is currently thinking about establishing or acquiring a business in Canada, the newest edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information and insightful commentary on different areas of law.

The book includes a chapter on dispute resolution, with sections on:

Canada’s Court system class actions alternative dispute resolution electronic discovery

After downloading the interactive PDF or eBook, we encourage you to consult one of our lawyers for a more comprehensive analysis of the legal implications of your proposed venture.… Continue Reading

Vivendi Canada Inc. v. Dell’Anniello, 2014 SCC 1 – Quebec’s Uncommon Approach to Commonality

Posted in Certification, Class Actions, Trends

A single common question can justify the authorization (certification) of a class action in Quebec provided that it

“can serve to advance the resolution of the litigation with respect to all the members of the group” (par. 4)

In assessing the sufficiency of the common question put forward by the petitioner, the motions judge should look to this criterion alone and not ask  whether the common question necessarily leads to a common answer.… 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

Bou Malhab Revisited

Posted in Procedure, Trends

In Lorrain v. Petro-Canada, 2013 QCCA 332 (CanLII), the Court of Appeal of Quebec reaffirmed that a class action seeking compensatory damages cannot be brought unless the Petitioner is able to establish that he, as well as all of the putative class members, suffered harm caused by the respondent’s fault or negligence.

In this case, class action proceedings were commenced against various petroleum companies. The petitioner alleged that calibration errors at the pump disproportionately favoured the respondent companies at the expenses of consumers (i.e., in roughly 74% of cases). The Superior court of Quebec refused to authorize the proposed class action finding, among other things, that the designated persons were unable to adduce evidence demonstrating that they had received less than was bargained for by obtaining fuel from an allegedly defective pump.… Continue Reading

Class Action Litigation v. Class-Wide Arbitration – The Supreme Court of Canada Holds Arbitration Cannot Meet the Objectives of Consumer Protection Legislation

Posted in Trends

The long-standing complaint against the court systems is that it is too slow and cumbersome a forum to deal with disputes expeditiously.  This has led to a rise in private arbitration of disputes.  The public policy objectives behind arbitration legislation are to encourage the entitlement of contracting parties to provide their own dispute resolution system and avoid the costs and delays of the civil justice system.[1]

The clash between the regimes of arbitration and class actions has been considered by the Supreme Court of Canada in the context of claims under consumer protection legislation. In Dell Computer Corp. v. Union des consommateurs ,[2] Smith v.… Continue Reading