Header graphic for print
Canadian Class Actions Monitor

Author Archives / Alexandra Cocks

Subscribe to posts by Alexandra Cocks

Douez v. Facebook, Inc.: Supreme Court of Canada decision creates new uncertainty about enforceability of forum selection clauses in consumer contracts

Posted in Class Actions

In a recent decision that could affect consumer class actions in Canada, the Supreme Court of Canada ruled in Douez v. Facebook, Inc. (“Facebook”) that a forum selection clause contained in Facebook’s Terms of Service was unenforceable when applied to a claim for breach of British Columbia’s privacy legislation. The precedent set by this case creates more uncertainty around how forum selection clauses will be applied by Canadian courts and could give plaintiffs new ammunition to avoid forum selection clauses in pursuing their claims. In allowing the appeal, the Supreme Court of Canada significantly modified the test for validity of forum selection clauses from Z.I.Continue Reading

Can a conventional action be “converted” into a class action in BC?

Posted in Class Actions

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.[1] 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[2] and Saskatchewan.[3] 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

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

BC Court Refuses to Strike Jury Notice in Common Issues Trial

Posted in Class Actions, Product Liability, Uncategorized

On July 28, 2016, in Bartram v. GlaxoSmithKline Inc., 2016 BCSC 1409, the BC Supreme Court dismissed the defendants’ application for an order striking out a jury notice and requiring that an upcoming trial of the common issues be heard by a judge alone.

The case involves allegations that newborn infants suffered cardiovascular birth defects as a result of their mothers’ use of the anti-depressant drug Paxil during pregnancy. The Defendant, GlasxoSmithKline Inc., marketed the drug in Canada.

A trial of the common issues is set for October 3, 2016 to last 40 days. There are 10 common issues to be determined at the trial.… Continue Reading

Sandhu v. HSBC Finance Mortgages Inc.: Disqualifying representative plaintiffs for the use of pre-certification “extortionate” settlement tactics in fee disclosure case

Posted in Certification, Class Actions, Insurance

Recently in Sandhu v. HSBC Finance Mortgages Inc., 2016 BCCA 301, the British Columbia Court of Appeal (the “BCCA”) decertified a class action where the plaintiffs sought damages or restitution from HSBC Finance Mortgages Inc. and the Household Trust Company in relation to title insurance fees.[1] In allowing the appeal, the BCCA disqualified two of the representative plaintiffs finding that they had engaged in “extortionate” settlement tactics before certification in a manner that did not reflect the values inherent in the Class Proceedings Act.

The plaintiffs alleged that when borrowers enter into a mortgage commitment with the HSBC defendant, they authorize a variety of fees relating to title insurance, variously described as a “Premium”, the “Policy Insurance Cost” and “Additional Charges”.… Continue Reading

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

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

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

Roadblocks to Certification of Consumer Class Actions in B.C.?

Posted in Certification, Class Actions

On October 8, 2014, the B.C. Supreme Court refused to certify a proposed consumer class action relating to the sale of bottled beverages sold under the trade name “Vitaminwater” to B.C. consumers. [1]

The plaintiff alleged that the defendants, Energy Brands Inc. and Coca-Cola Ltd., marketed Vitaminwater products in a manner which had the “capability, tendency or effect of deceiving or misleading a consumer” into concluding that Vitaminwater is a healthy beverage with a minimal amount of sugar. The plaintiff claimed that this constituted a “deceptive act or practice” in violation of the B.C. Business Practices and Consumer Protection Act (“BPCPA”).… Continue Reading

A culture shift? Pre-certification Summary Trial in Product Liability Case

Posted in Certification, Class Actions, Product Liability

On June 20, 2014, the BC Supreme Court released a decision in Player v. Janssen-Ortho Inc.,[1] a proposed product liability class action involving transdermal fentanyl patches. The Court dismissed the action against two of the five defendants in a summary trial prior to certification.

The case is significant in three ways:

Scope of inquiry:  The Court held that while in other provinces pre-certification class proceedings are treated as “any old [individual] action”, in BC, proposed class actions are treated as “action[s] with ambition”. In this context, the Court concluded that evidence relating to the proposed class—and not just the individual plaintiff—could be considered on a pre-certification summary trial application, despite that any judgment would bind only the plaintiff.… Continue Reading

A Provincial Divide: BC Court Refuses to Certify “System Access Fee” Case Despite a Saskatchewan Court Certifying a Similar Case

Posted in Certification, Class Actions, Multijurisdictional

On June 5, 2014, the B.C. Supreme Court refused to certify a proposed class action against a group of cell service providers (Rogers, Fido, Bell Canada, and Telus). The action related to a “system access fee” charged by each of the defendants. The plaintiff claimed that the defendants misrepresented that the fee was a tax or license fee that went directly to the government. He alleged that this was a “deceptive act or practice” and therefore a breach of the BC Business Practices and Consumer Protection Act (“BPCPA”) and that the defendants were “unjustly enriched” by the collection of these fees.… Continue Reading