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Canadian Class Actions Monitor

Category Archives: Procedure

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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

Contingency Fees – An Abundance of Costs

Posted in Multijurisdictional, Procedure

Cannon v. Funds for Canada Foundation, 2013 ONSC 7686

In this class action decision Justice Belobaba of the Ontario Superior Court of Justice set out new, generous guidelines for assessing contingency fee requests by class counsel in the context of a settlement of an action. Courts have adopted different methods for assessing whether contingency agreements should approved including the “lodestar” approach, the “multiplier” approach, combinations thereof and attempts to fix a notional “cap” on the percentage of a settlement amount. As a consequence, costs awards have been determined on an ad hoc basis leading to inconsistent results.

Justice Belobaba conducts a quick review of this sometimes tortured process and concludes that a single, simple, straightforward approach to contingency fee agreements should be adopted. … Continue Reading

The Door is Open for Class-Wide Arbitration of Franchise Disputes – But For How Long?

Posted in Procedure, Product Liability

While it may be the case in Canada that consumer protection legislation has foreclosed the possibility of resolving disputes under form consumer contracts via arbitration,[1] it remains to be seen whether the policy rationale underlying these decisions will be similarly applied to franchise disputes.  The question remains whether the arbitration vehicle in Canada will be considered by the courts to be sufficient to deal with these types of class-wide claims, but at least in principle the option remains open.

In Ontario the Arthur Wishart Act (“AWA”) entitles franchisees to associate with one another.[2]  It has been held by the Ontario Court of Appeal that this right cannot be contracted out of in a franchise agreement.… 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

The Quebec Court of Appeal Refuses to Get Carried Away

Posted in Procedure

In Schmidt v. Johnson & Johnson et al. the Quebec Court of Appeal has qualified its approach to carriage in class action matters.

Since 1999, when that same Court rendered its decision in Hotte v. Servier, the rule in Quebec has been that the first party to file a class proceeding with respect to a particular defendant and proposed class will have carriage of the litigation. Any subsequent class proceedings will be suspended given the appearance of lis pendens.

This approach to carriage is different from that adopted in the U.S. and common law Canada, where carriage hearings are typically held in order to determine which counsel would be best suited to pilot the class action.… Continue Reading

Can Opinions be Considered at Certification in Quebec?

Posted in Procedure

We used to think that opinions alleged in a certification motion in Quebec could not be considered by the Court as part of the factual elements taken for true.  However, in a very recent decision certifying a class action for illegal price-fixing Gasoline Cartel, the Superior Court of Quebec decided that any documents filed by petitioner containing opinions and hearsay must be considered by the Court in order to assess the appearance of right.  This is a new twist that you have to be aware when assessing the appearance of right.  But does that mean that respondents will be able to ask leave to file similar documents containing opinions?… Continue Reading