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Canadian Class Actions Monitor

Category Archives: Certification

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British Columbia Court of Appeal upholds the certification of another undisclosed fees case

Posted in Certification, Class Actions

As previously reported, inadequate fee disclosure cases continue to attract class actions in British Columbia, with the weight of authority favouring certification. In the recently released decision of Finkel v. Coast Capital Savings Credit Union, the British Columbia Court of Appeal upheld the certification of another such class action.[1]

Finkel involves undisclosed foreign currency charges. The plaintiff alleges that Coast Capital imposed additional surcharges on members who withdrew foreign currency from their personal accounts through ATMs outside Canada. The plaintiff claims that this additional surcharge breached Coast Capital’s contractual obligations and was a deceptive act or practice, contrary to the Business Practices and Consumer Protection Act, S.B.C.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

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

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

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

More uncertainty in managing multi-jurisdictional class actions: leave to appeal granted in Ammazzini v Anglo American PLC

Posted in Appeals, Certification, Class Actions

In the recent decision of Ammazzini v Anglo American PLC (“Ammazzini”), 2016 SKCA 73, the Saskatchewan Court of Appeal granted leave to appeal an order made in chambers conditionally staying a proposed multi-jurisdictional class action (the Ammazzini Action) against the respondents, Anglo American PLC, De Beers Canada Inc. and others, pending a certification decision in a similar class action commenced in Ontario by Kirk Brant (the Brant Action).

This matter involved four separate class action proceedings, at various stages and involving plaintiffs (or prospective plaintiffs) in jurisdictions across Canada. The actions involved allegations that the defendants overcharged for gem grade diamonds by restricting the world supply of diamonds to inflate the price.… 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

“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

Which way are the class action winds blowing in B.C.?

Posted in Certification, Class Actions

Since B.C. enacted its Class Proceedings Act in 1996, B.C. has been viewed as a certification-friendly jurisdiction, with certification rates approaching 100% in some years.  What do the 2015 cases tell us?

Based on a review of reasons from 2015 relating to contested appeals dealing with proposed or certified class actions, as posted on the B.C. Superior Courts website:… Continue Reading

Getting in the Zone – The court’s new approach to the settlement approval process

Posted in Certification, Class Actions

In a duo of decisions released this month, Justice Belobaba of the Ontario Superior Court of Justice has called on judges and counsel alike to change the way they approach court approval of class action settlements.

In Ontario, all class action settlements must receive approval from the court under section 29(2) of the Class Proceedings Act. This requirement recognizes that, due to the interests and incentives of the parties at the negotiating table (class counsel and the defendants), there is a risk that the settlement of a class action will result in either a ‘sweetheart’ settlement (whereby class counsel agrees to settle for less than the case is worth) or a blackmail settlement (whereby the defendants are coerced into settling cases for more than they are worth).… Continue Reading

Despite Vivendi, when class actions are overly individual in nature, authorization is dismissed

Posted in Certification, Class Actions

In Caron v. Fraternité provinciale des ouvriers en électricité, section locale 1676, 2016 QCCS 25, the Superior Court of Québec refused to authorize a class action on behalf of linesmen who had paid contributions to the Respondents, Unions and Québec Construction Board, pursuant to the Act Respecting Labour Relations, Vocational Training, and Workforce Management in the Construction Industry (the “Act R-20”).

The Petitioner alleged that there was no legal relationship between the members of the putative group and the Respondents, given that the members of the putative group were working for enterprises under federal jurisdiction that were therefore not subject to the Act R-20.… Continue Reading

B.C. Class Action Battlegrounds in 2015

Posted in Certification, Class Actions

 

Although historically the only real battle ground in B.C. class actions was certification, the new reality is more complicated.

 

There continue to be some cases in which pre-certification issues are a battle ground, including, for example, where defendants seek a stay based on jurisdiction or apply to have pleadings struck. The state of the law is now that certification is to be the first procedural hearing except where a motion is time-sensitive, would benefit the parties, furthers the objective of judicial efficiency or has the potential to dispose of the litigation (Tucci v. Peoples Trust, 2015 BCSC 987).… 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

Class action proceedings not authorised against financial market participants: it’s not because it is complicated that the threshold is lower

Posted in Certification, Class Actions

On January 13, 2016, Justice Claude Dallaire dismissed Petitioner’s request to obtain the authorization to exercise a class action against 3 different entities of the Desjardins Group.

Petitioner’s claim was related to the distribution and management of structured products akin to principal protected notes (“PPNs”), from 2002 to the fall of 2008. The PPNs’ in question were linked notably to hedge funds. In the fall of 2008, in the midst of the global financial crisis, the PPN holders were informed that these would not provide any return  for the rest of their terms, which varied from 3 to 7 years. In light of this, Petitioner sought compensatory damages equivalent to the alleged loss of return on his investment, in addition to punitive damages.… 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

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

Defendants Continue to have Success with the Pleadings and Identifiable Class Requirements

Posted in Certification, Class Actions

The trend showing a more rigorous application of the certification criteria in B.C., particularly in respect of the pleadings and identifiable class requirement, has continued with the B.C.S.C.’s reasons for judgment in Unlu v. Air Canada, 2015 BCSC 1453.

In this set of cases, individual representative plaintiffs had purchased tickets for international air travel from each of five different defendant airlines. The tickets included amounts described as airfare as well as variously described taxes and fees, which included amounts for fuel surcharges. The five actions alleged that the manner in which fuel surcharges are displayed and described on passengers’ ticket receipts amounts to a deceptive act or practice contrary to the Business Practices and Consumer Protection Act (the “BPA”).… 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

Why Don’t Investors Care: Questioning the Value of Securities Class Actions

Posted in Certification, Class Actions, Securities

In our post dated June 17, 2015, we discussed the March 26, 2015 decision of the Supreme Court of Canada denying leave to appeal from the judgement of the Ontario Court of Appeal (“ONCA”) in Kaynes v. BP Plc, 2014 ONCA 580 (“Kaynes”). Kaynes endorses a “transactional” test for securities fraud class actions in Canada and in so doing threatens to reverse Canada’s growing trend of Global Class Action certification. For the purposes of this article a “Global Class Action” is any securities fraud class action brought with respect to securities purchased on a foreign exchange.

A key element from our first post was a study by Professor Robert P.… Continue Reading

First class action involving a prescription drug being denied certification in British Columbia?

Posted in Certification, Class Actions

In Charlton v. Abbott Laboratories, Ltd., 2015 BCCA 26, the Court of Appeal for British Columbia overturned certification of a class action on behalf of all Canadian consumers of sibutramine, a weight-loss drug.

It was alleged that sibutramine increased the risk of cardiovascular events.

The Plaintiffs’ evidence on general causation was a trial that had demonstrated that sibutramine increased risks of cardiovascular events on patient with pre-existing cardiovascular disease.

However, evidence was adduced that sibutramine ought not be prescribed to patients with such pre-existing diseases. Therefore, the Appellants pleaded that there was no evidence that sibutramine causes or contributes to cardiovascular events among class members, i.e.… Continue Reading

Supreme Court Declines to Review Ontario Court of Appeal Case Questioning Growing Trend of Global Class Action Certification

Posted in Certification, Class Actions

Recent developments suggest that the ongoing success of the Canadian plaintiffs’ bar in obtaining certification of global securities class actions may be illusory. On March 26, 2015, the Supreme Court of Canada denied leave to appeal from the judgement of the Ontario Court of Appeal (“ONCA”) in Kaynes v. BP, Plc, 2014 ONCA 580 (“Kaynes”). As noted by our colleagues Michael Rosenberg and Sapna Thakker in an August 2014 Canadian Class Actions Monitor blogpost, Kaynes, depending on how it is interpreted by other Canadian courts, has the potential to reverse the growing trend of global class action certification in Canada.

In Kaynes, the plaintiffs sought certification of a global securities class action alleging that BP PLC made misrepresentations in its financial statements with respect to the April 2010 Deep Water Horizon oil spill in the Gulf of Mexico.… Continue Reading

“A Mirage of Judicial Economy” – BCSC Applies a More Rigorous Preferability Analysis

Posted in Certification, Class Actions

Mr. Justice Funt has refused to certify Vaugeois v. Budget Rent-A-Car of BC Ltd., 2015 BCSC 802 on the basis of preferability.  This is a welcome result in the wake of AIC Limited v. Fischer, 2013 SCC 69 discussed in an earlier blog HERE.

In this case, the plaintiffs alleged that the defendants, Budget Rent-A-Car of B.C. Ltd. and Inland Transportation Ltd., “engaged in a systematic scheme whereby consumers renting motor vehicles from Budget’s various car rental branches [in B.C.] were improperly charged or over-charged for body and window glass repairs.”… Continue Reading