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Canadian Class Actions Monitor

Category Archives: Class Actions

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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

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

Posted in Class Actions

Introduction

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.

Background

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

Introduction

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.

Background

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

E-Discovery_in_Canada_Cover_JAN2017

 

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.

Background

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.

Background

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

Plaintiffs Lack Standing to Bring Representative Action to Claim Aboriginal Rights

Posted in Class Actions

The British Columbia Supreme Court recently refused to allow the Chief and Council of the Hwlitsum First Nation (“HFN”) to advance a representative action to claim Aboriginal title and rights on behalf of a historic rights-bearing community. In Hwlitsum First Nation v Canada (Attorney General), 2017 BCSC 475, Justice Abrioux held that the representative action could not proceed because the class or collective for whom the representative plaintiffs purported to act was not capable of clear and objective definition.

As we previously noted in the Canadian Class Actions Monitor’s commentary on Araya v Nevsun Resources Ltd, 2016 BCSC 1856, British Columbia does not have a common law class action.… Continue Reading

The Often Forgotten Tool: The Decertification Motion

Posted in Class Actions

It is tempting for lawyers to look at their cases as moving in a straight line, with each phase building towards the next. However, as class proceedings progress, new facts or circumstances may arise that undermine the issues for which the proceeding was certified for in the first place. In such circumstances, Defendant’s counsel should take a step back to analyze whether a motion for decertification is potentially appropriate.

Plaunt: An example of a recent decertification motion

This is exactly what happened in Plaunt v. Renfew Power Generation Inc.[1] In Plaunt, a class of approximately 450 individuals in Ontario who owned property surrounding Round Lake had their action certified against Renfrew Power Generation (“RPG”).… 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 counsel fees in settlement agreements: the Quebec Superior Court refuses to rubber stamp

Posted in Class Actions

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

Flooding Damage Class Action in Manitoba: The Court of Appeal Comments on Common Issues and Preferability in Anderson v Manitoba

Posted in Class Actions

In Anderson v Manitoba,[1] 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.

Background

The representative plaintiffs in Anderson are members of four First Nations in Manitoba that were affected by flooding in 2011.… Continue Reading

Individual Issues Overwhelm Common Issues in a Nuisance Claim

Posted in Class Actions

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