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Canadian Class Actions Monitor

Category Archives: Class Actions

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Class Actions vs Individual lawsuits: The Equifax Litigation

Posted in Class Actions

The New Year began with yet another lawsuit against Equifax, Inc. and their Canadian counterpart, Equifax Canada Co. (collectively, “Equifax”). This time a proposed province-wide class action commenced in British Columbia on January 10, 2018. So far, several legal avenues are being utilized by affected individuals which raises interesting legal considerations discussed below.

Brief Recap

Equifax encountered a large security breach in the second quarter of 2017. Some 8,000 Canadians have been affected by the breach, as well as an estimated 143 million Americans, leading to several class action lawsuits throughout Canada and the United States.

British Columbia Courts

On January 10, 2018, Joshua Elliott Temple filed a class action claim at the Supreme Court of British Columbia.… Continue Reading

BCSC clarifies the evidentiary requirements for establishing commonality of harm

Posted in Class Actions

Canadian courts have consistently cautioned against applying an exacting standard of scrutiny at the certification stage. But the B.C. Supreme Court’s recent decision in Ewert v. Nippon Yusen Kabushiki Kaisha issues an important reminder that the standard of assessing evidence at the certification requires more than just symbolic scrutiny.

In Ewert, the Court denied certification due to the plaintiff’s failure to demonstrate a credible methodology to show harm to indirect purchasers. In doing so, the Court reminded prospective class action plaintiffs that certification is not a “file, smile, and certify” exercise.[1]


The plaintiff commenced an action alleging price-fixing by several major operators of roll-on/roll-off (“RoRo”) vessels for shipping vehicles and heavy equipment to Canada.… Continue Reading

Update on Overtime Class Actions in Canada

Posted in Class Actions

Since 2007, several Canadian employers have found themselves defending class action claims that seek millions of dollars in unpaid overtime.

This post examines some of the recent decisions and settlements relating to overtime class action claims in Canada and provides guidance for employers to help mitigate the risk of overtime class action claims.

Recent Overtime Class Action Cases in Canada:

On January 30, 2015, the Ontario Superior Court of Justice certified a $100 million class action for unpaid overtime in Baroch v Canada Cartage. The class action was brought on behalf of 7,800 former and current employees who alleged that they were entitled to receive overtime compensation.… Continue Reading

The Quebec Court of Appeal comments on the Role of Class Action Representative and Interactions with Class Counsel, in the context of Abusive Proceedings

Posted in Appeals, Class Actions

In a judgment issued on February 19, 2018 in the matter of Deraspe v. Zinc Electrolytique du Canada Ltée[1], the Quebec Court of Appeal (Justices Dutil and Roy concurring, with Justice Rancourt dissenting) confirmed the decision of the Superior Court declaring both class representative and counsel to be vexatious litigants and disqualifying them from the case. This led the majority of the Court of Appeal to make interesting comments on the role expected of the representative in the class action context.… Continue Reading

What’s the test? Admissibility of Expert Opinion Evidence in Certification Applications

Posted in Class Actions

The Saskatchewan Court of Queen’s Bench in Stout v. Bayer Inc., 2017 SKQB 329 (“Stout”) confirmed that the same standard for the admissibility of expert evidence applies in class action certification applications as in other proceedings.  Evidence must satisfy the test for admissibility before it will be considered in the context of certification.  As such, the lesser standard of proof associated with the statutory certification requirements does not reduce the threshold of admissibility of expert opinion evidence in certification applications.

Facts in Stout

Stout is a proposed class action concerning the Essure Permanent Birth Control System (“Essure”), a permanent form of female birth control.… Continue Reading

Federal Court confirms no cost awards granted against Plaintiffs for discontinuance of class proceedings under Rule 334.39(1)

Posted in Class Actions

In the recent decision of Dennis v Canada, the Federal Court upheld the principle of the “no-costs” approach for plaintiffs who wish to discontinue an action under Rule 334.39(1) of the Federal Court Rules (the “Rules”).


Earlier this spring, farmers in Western Canada started a class proceeding in Manitoba against the Minister of Agriculture and Agri-Food, and the former Canadian Wheat Board (“CWB”) and its successors, (collectively, the “Defendants”). Edward Dennis is the named Plaintiff in the proposed action, which is noted to have impacted over 70,000 farmers in the provinces of Manitoba, Saskatchewan, Alberta and the Peace River District of British Columbia (collectively, the “Plaintiffs”).… Continue Reading

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

The Manitoba Court of Appeal Confirms Stay of One Class Action in Favour of Another on the Same Issue

Posted in Class Actions


The question of who should have carriage of a proposed class action is an important one. It determines which plaintiff can define the proposed class, pursue certain claims, and which law firm will represent the lead plaintiff in the proposed class. When faced with multiple claims and proposed classes relating to the same issue, a Court must decide who will have carriage of the matter going forward to certification. The Manitoba Court of Appeal’s recent decision in Thompson et at v Minister of Justice of Manitoba et al (the “Appellate Decision”) provides some indication that courts, when faced with competing potential class actions, may prefer claims with a narrower focus and fewer defendants (and therefore a potentially better chance of being certified).… Continue Reading

Global Class Actions Gain Traction – Ontario Assumes Jurisdiction over Absent Foreign Claimants

Posted in Class Actions

Can individuals who live outside of Canada, who contracted outside of Canada, and who suffered losses outside of Canada, be part of a proposed class without personally consenting to Canadian jurisdiction?

Following the Ontario Court of Appeal’s recent decision in Airia Brands Inc. v. Air Canada, 2017 ONCA 792, the answer is yes.


In short, the Airia Brands case is about a global price-fixing conspiracy claim. The plaintiffs alleged that the defendants, several well-known international airlines, conspired in Canada and throughout the world to fix prices of Airfreight Shipping Services. Leading into certification, the claim involved a putative class made up of members from more than 30 different countries across the world, including so-called absent foreign claimants (“AFCs”).… Continue Reading

The Quebec Court of Appeal overturns yet another refusal to authorize a class action; dissenting in part, a judge criticizes the “improvised” approach of class counsel and sends a reminder that normal evidentiary rules will apply at trial

Posted in Class Actions

In J.J. v. Oratoire Saint-Joseph du Mont-Royal, 2017 QCCA 1460, the Quebec Court of Appeal (Justices Gagnon, Healy and Marcotte) overturned a refusal by the Quebec Superior Court (Justice Julien Lanctôt) to authorize a class action concerning allegations of sexual abuse by members of a religious congregation. Justice Marcotte partially dissented and would have authorized the class action against only one of the two respondents in light of the absence of any compelling evidence of a link between the St-Joseph Oratory and the alleged victims. Justice Marcotte also sent a strong message to class counsel regarding the evidentiary burden to be applied on the merits and denounced the improvised approach in drafting proceedings.… Continue Reading

Alberta Court of Appeal Highlights an Issue to Watch: Could the Provincial Government Have a Duty to Sue Itself?

Posted in Class Actions


Legislation often imposes a duty on the government, and the government’s alleged failure to comply with such a duty often leads to legal proceedings. However, what has yet to be determined is whether the government may have an obligation to sue itself for breaching its own statutory duty. In its September 7, 2017 decision regarding the appeal of a certification order, LC v Alberta (2017) (the “Appellate Decision”),[1] the Alberta Court of Appeal hinted that this question may be answered when this class action goes to trial. If the trial court finds that the Government of Alberta (the “Provincial Government”) must sue itself as part of its fiduciary duty, this may become a new avenue for litigation in not only class actions, but other proceedings as well.… Continue Reading

Walter v Western Hockey League Part 2: Plaintiffs Score on Class Action Certification

Posted in Class Actions

Last year we wrote [1] about the commencement of a class action lawsuit, Walter v Western Hockey League, taken against the Western Hockey League (WHL) and its umbrella organization, the Canadian Hockey League (CHL). This league also includes clubs in the American states of Oregon and Washington. In that post we discussed the admissibility of evidence and pre-certification disclosure in connection to two pre-certification decisions. In this post, we continue the saga with the recent decision [2] of the Alberta Court of Queen’s Bench wherein the representative plaintiffs seek to have their action certified in Alberta under the Class Proceedings Act [3].… Continue Reading

Narrowing the Case Before It Begins: Ontario Court Grants Pre-Certification Motions to Strike

Posted in Class Actions

Earlier this month, the Ontario Superior Court of Justice handed down its decisions in four separate actions in the Fortress cases,[1] serving as a reminder to defendants about a useful tool that can still yield the favourable result of substantially narrowing a class proceeding: the pre-certification motion to strike.

Syndicated Mortgages

Four land development projects in the Greater Toronto Area sought financing by means of syndicated mortgages in which relatively small investors participated. Certain investors commenced class proceedings against a number of participants in the projects. Among the defendants was the trust company involved in the syndication. The investors’ claim, which Justice Perell characterized as a “new genre of class action,” sought mass rescission of the investments in the mortgage, combined with a mass mortgage enforcement action, combined with tort, contract and breach of fiduciary duty claims.… Continue Reading

Proven or presumed prejudice? The Quebec Court of Appeal clarifies the burden of proof under consumer protection law

Posted in Class Actions

Is a consumer plaintiff required to prove the actual prejudice suffered and its causal link with the alleged violation in order to obtain compensatory damages under Quebec’s Consumer Protection Act (“CPA”)? In recent years, counsel acting for plaintiffs and defendants in class actions tended to have different answers to this question based on different interpretations of the Supreme Court decision in Richard v. Time Inc., 2012 SCC 8 (“Time”). In the recent judgment Videotron c. Union des consommateurs, 2017 QCCA 738, the Quebec Court of Appeal clarifies the issue and the meaning of the “absolute presumption of prejudice” discussed by the Supreme Court in Time.… Continue Reading

Farmer’s Odyssey: Prolonged Class Action Proceedings Against Saskatchewan Ministry of Agriculture Ends in Summary Dismissal

Posted in Class Actions

In Holland v Saskatchewan (Ministry of Agriculture), 2017 SKQB 172, the Saskatchewan Court of Queen’s Bench dismissed a class action brought by a group of deer and elk farmers against the Saskatchewan Ministry of Agriculture. The class action alleged damages caused by the Ministry’s negligent implementation of a Chronic Wasting Disease monitoring program. The Court of Queen’s Bench concluded that the Ministry had statutory immunity for their actions and granted summary dismissal of the class action. The history of the case leading up to the summary dismissal reveals a legal odyssey lasting 13 years and taking the parties all the way to the Supreme Court of Canada and back.… Continue Reading

Ontario Court of Appeal Affirms Aggregate Damages Appropriate

Posted in Appeals, Case Comments, Class Actions

The Ontario Court of Appeal has recently released two related decisions: Trillium Motor World Ltd. v Cassels Brock & Blackwell LLP, 2017 ONCA 544 (“Cassels Decision”) and Trillium Motor World Ltd. v General Motors of Canada Limited, 2017 ONCA 545 (“GM Decision”).

Both are trial decisions relating to class actions arising from General Motors of Canada Limited’s (“GMCL”) 2009 restructuring plan. Though many legal issues are addressed in the two sets of reasons, the focus of this post is the Court’s consideration of the appropriateness of aggregate damages in class action suits in the Cassels Decision.


In 2009, as a result of the global financial crisis, GMCL required a financial bailout from the Canadian government.… Continue Reading

Who are the principals of class counsel?

Posted in Case Comments, Class Actions

In a class action, diverging opinions between a class representative and his lawyer can lead to delicate situations, especially when the outcome of the proceeding is at stake. In the recent case of Lépine c. Société canadienne des postes,[1] the Quebec Superior Court had to rule on an application to approve a settlement transaction filed by class counsel, supported by the defendant, but forcefully contested by the class representative.

1.               Background

Michel Lépine (“Lépine”) had bought some service from the Canada Post Corporation (“Canada Post”), consisting of free lifetime Internet access with the purchase of a CD-ROM. A month later, the free internet service was terminated.… Continue Reading

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

A job to be a hockey player: Ontario Superior Court of Justice certifies a class action to decide whether OHL players are employees entitled to get a minimal wage pay

Posted in Class Actions

The Ontario Superior Court of Justice recently certified a case that, as reported by some media, could change Canadian hockey forever.[1] Two representative plaintiffs, Sam Berg, a former Niagara IceDogs forward, and Danial Pachis, a former member of the Oshawa Generals, will be allowed to pursue a lawsuit against the OHL and its clubs[2] alleging that junior hockey players do not get what they are entitled to under the law, namely, minimum wages for their services on the basis that they are employees. The case demonstrates the difficulties of pursuing a cross-border class action where some members of the class reside in Canada and others reside in the United States.… Continue Reading

3rd Edition of E-Discovery in Canada now available

Posted in Class Actions



Susan Wortzman, partner and Director of E-Discovery, and a team of experienced authors the third edition of E-Discovery in Canada. The book covers everything lawyers, in-house counsel and law clerks need to know about conducting e-Discovery, from preservation to proportionality to costs.

Learn from the professionals in Canada and find out how to leverage their know-how for better outcomes for your clients’ in this revised and updated edition. The third edition can be purchased here. … Continue Reading

The End of an Era: The Ontario Court of Appeal Confirms (Again) that the Securities Class Action Against Timminco is Out of Time

Posted in Class Actions

A secondary market class proceeding against Timminco Ltd. has been in legal purgatory since 2012, a victim of the changing jurisprudence governing the limitation period applicable to those claims. In a May 2017 decision (Timminco 2017),[1] the Ontario Court of Appeal decided that the case could not proceed because the plaintiff investor had not commenced his motion for leave to proceed under Ontario’s Securities Act in time.

Timminco 2017 represents the last gasp of the group of proposed class actions in which the courts of Ontario – and ultimately, the Supreme Court of Canada – worked out the governing interpretation of the interplay between Ontario’s Class Proceedings Act, 1992 and Securities Act.… Continue Reading

A Failed Gamble

Posted in Class Actions

The recent decision in Ifergan v. Loto-Quebec, 2017 QCCS 1332, presents a rare occasion where the Superior Court of Québec refused permission to institute a class action lawsuit.  The Court determined that even the low standard of “alleging facts that justify the conclusion sought” was not met in this case, and that an overzealous litigant was ill-suited to represent the proposed class, given his past behaviour before the courts.

The Allegations

The Applicant presented an Application for Authorization to Institute a Class Action, in which he claimed that the Respondent Loto-Quebec had misrepresented the likelihood of winning its Super 7 or the Lotto Max lotteries, due to a particular methodology for generating numbers for consumers opting for automated selection, known as “quick-pick”.… Continue Reading

Not Quite a No-Hitter: Ontario Superior Court Declines to Strike (Most) Claims Related to Pre-Installed Software

Posted in Class Actions

In the recent decision of Bennett v. Lenovo[1] (“Bennett”), in the Defendant Lenovo’s motion to strike the proposed class action in its entirety, the Ontario Superior Court of Justice declined to strike three of the four causes of action relating to manufacturer installed software loaded onto laptop computers. The Court’s decision demonstrates the difficulty that can arise in pleading motions as the law concerning privacy matters associated with consumer technology products continues to grow and change.


The Plaintiff, a Newfoundland-based lawyer, purchased a Lenovo laptop from an online vendor. After receiving the laptop, he subsequently noticed the Virtual Discovery adware program that was pre-loaded onto the laptop.… Continue Reading

Quebec Superior Court Grants a Defendant Pre-Trial Discovery of Six Class Members

Posted in Class Actions

In Martel v. Kia Canada inc., 2017 QCCS 976, the Quebec Superior Court (Justice Chantal Tremblay) ruled on a motion by the defendant to examine class members. The motion was filed by Kia shortly after class counsel stated that they would call six previously unannounced witnesses at trial, all class members. The Court agreed that Kia should be able to examine all six class members on discovery before the case could be set down for trial and clarified the applicable test for pre-trial examinations of class members.


A class action was authorized (certified) against Kia on June 12, 2015 by the Quebec Court of Appeal (reversing the Superior Court).… Continue Reading