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Canadian Class Actions Monitor

Tag Archives: certification

Sandoff v. Loblaw Companies Ltd.: Class Action considerations for Canadian food and beverage manufacturers

Posted in Uncategorized

Canadian food and beverage manufacturers should take note of Sandoff v. Loblaw Companies Ltd., (“Sandoff”) a recent Saskatchewan Court of Queen’s Bench (“SKQB”) class action case concerning allegedly deceptive food labelling practices.

In Sandoff, the representative plaintiffs (the “Plaintiff”) issued a claim under Saskatchewan’s Class Actions Act, seeking to recover damages on behalf of “all persons in Canada who, on or after the [relevant date] purchased Diet Cola, Low Sodium, Caffeine Free or PC Club Soda, Low Sodium (collectively the “Low Sodium Beverages”) from Loblaws in Canada.”[1]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

No Duck, No Luck: Quebec Superior Court Denounces Passive Class Action Petitioners and their Enterprising Counsel

Posted in Certification, Class Actions

In Adanna Charles v. Boiron Canada (Boiron), the Quebec Superior Court recently rendered a judgement refusing to authorize (certify) a class action and to name as representative plaintiff a petitioner whom it deemed to be less than adequate and lawyer-driven.  The decision tempers the liberal approach to authorization in Quebec, and clearly articulates a set of criteria for assessing the adequacy of a proposed class representative.  The ruling is also of interest for companies involved in the retail of regulated products, as it suggests that goods having been approved for sale by public authorities – a health product in this case – should not be subjected to legal action grounded in largely unsubstantiated allegations of misrepresentation.… Continue Reading

Undisclosed Fees Continue to Attract Class Actions

Posted in Certification, Class Actions

The Marcotte case, a Quebec class action against several financial institutions in relation to allegedly undisclosed currency conversion fees, was the subject of recent reasons by the Supreme Court of Canada.  Our blog on that case is available HERE.  Marcotte is not alone: financial institutions and the fees they charge, particularly where it may be alleged that such fees have not been adequately disclosed, remain big business for class actions plaintiffs.

In the recently released decision of Sandhu v. HSBC Finance Mortgages Inc. et al (reasons available HERE), the British Columbia Supreme Court has certified an action seeking damages or restitution from HSBC Finance Mortgages Inc.… 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 Rare Decertification Decision from the BCCA Stands: No Leave to Appeal Wakelam

Posted in Certification, Class Actions

The Supreme Court of Canada yesterday refused the plaintiff’s application for leave to appeal the British Columbia Court of Appeal’s decertification decision in Wakelam v. Wyeth et al.  Wakelam is a claim against various manufacturers of children’s cough and cold medication for relief due to the manufacturers’ sale of the medicines prior to a Health Canada order requiring such medicines not be marketed for children under six years of age and requiring re-labelling to that effect.  The case was certified in 2011.… Continue Reading

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

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

Deemed Reliance in the U.S. Supreme Court

Posted in Case Comments, Class Actions, Securities

The following post on the Canadian Securities Regulatory Monitor blog may be of interest to readers of this blog: Deemed Reliance in the U.S. Supreme Court.

On June 23, 2014 the United States Supreme Court issued its much-anticipated decision in Halliburton Co. v. Erica P. John Fund (“Halliburton”), as issuers and investors in the U.S. (and Canada) wanted to see if the landscape for securities class actions in both countries would be fundamentally changed. The U.S. Supreme Court made only an uneventful change in U.S. law and so our Courts are not likely to see a sudden shift of class actions against cross-listed companies to Canada.… 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

Intrusion Upon Seclusion Part 2: Implications for Businesses Across Canada

Posted in Certification, Class Actions

Recently, my colleague Sean Griffin canvassed the decision Evans v Bank of Nova Scotia (“Evans”)[1] wherein the Ontario Supreme Court certified a class action proceeding for allegations concerning a breach of privacy rights through the tort of intrusion upon seclusion first set out in Jones v Tsige (“Jones”)[2].  See his blog here.

Evans has set a precedent for the low bar of certification in class actions concerning breaches of information privacy. In this blog, we will canvass the implications the Evans decision on organizations in various provisions and how organization can mitigate the risks of a class action privacy breach.… Continue Reading

Privacy Breaches: Statutory Torts of the British Columbia’s Privacy Act Override Forum Selection Clauses

Posted in Certification, Class Actions

On May 30, 2014, the Supreme Court of British Columbia rendered a judgment certifying a class action against Facebook Inc. (“Facebook”). In Douez v. Facebook Inc.[1], the plaintiff alleges that Facebook used the names or portraits of Facebook users without their consent in advertisements called Sponsored Stories in breach of section 3(2) of the British Columbia’s Privacy Act[2] which creates a statutory tort. This case, in a pre-certification stage, also dealt with the question of whether a court should decline its jurisdiction in presence of a forum selection clause or pursuant to the forum non conveniens doctrine.


Facebook’s application to have the Court decline jurisdiction over the case was rejected.… Continue Reading

Understanding proceedings a requirement for representative plaintiffs

Posted in Certification, Class Actions

On April 11, 2014, the Alberta Court of Queen’s Bench released its decision refusing to certify a class action because the proposed representative plaintiffs lacked even a basic understanding of their roles and responsibilities.  In Sullivan v Golden Intercapital Investments Corporation, the plaintiffs were customers of GIC, a company offering refinancing to individuals facing foreclosure.  The plaintiffs alleged various unfair business practises and breaches of fiduciary duties by GIC, its sole director, and numerous lawyers who had advised GIC customers.

Suitability of representative plaintiffs

As in all provinces except Prince Edward Island, the Alberta Class Proceedings Act (“CPA”) requires that representative plaintiffs be able to “adequately and fairly”  conduct the litigation on behalf of the class. … Continue Reading

Better to Battle than Settle?: Copyright Class Action Settlement Rejected

Posted in Class Actions, Settling

Waldman v. Thomson Reuters Canada Limited, a recent decision denying approval of a proposed settlement, is perhaps a signal that actions in which there may be a “prohibitively high-risk” the class will not succeed are not ripe for settlement.[1]

One reality in the class action context is that, once the certification threshold is passed, a pure cost-benefit analysis often leads to the conclusion that settling, whether the case is likely to succeed on the merits or not, outweighs the cost of many years of common issues and individual trials.

The United States Supreme Court recently heard argument that very few cases in the United States proceed once a class has been certified, and less than one-third of 1% ever get to a verdict.… Continue Reading

Magill v. Expedia, Inc. – Summary Judgment: The New Response to Certification?

Posted in Certification, Class Actions

In the first decision in the class action context since the Supreme Court of Canada expanded the scope of summary judgment in Hryniak v. Mauldin, 2014 SCC 7, Perell J. of the Superior Court of Justice has dismissed a newly certified class action against travel booking website Expedia Inc. This decision underscores the fact that certification has no bearing on the merits of a class action, and further, that summary judgment may be an appropriate response to the certification of a weak claim.

New Test for Summary Judgment

In Hryniak, the Supreme Court held that the judge hearing a motion for summary judgment must review the evidence to determine whether there is a genuine issue for trial.… Continue Reading

What do US Class Action Decisions Mean for Canada?

Posted in Certification

Recently, there was extensive media coverage of a US district court’s refusal to certify a proposed privacy class action against Google (see one such article HERE).  The case alleged that Google had intercepted and read users’ emails, and mined the content of those emails for targeted advertising.  Plaintiff’s counsel had argued that the case could give rise to the highest award of damages in any class action, anywhere, to date.

Does the US court’s refusal to certify mean no such case will be filed or certified in Canada?

The US court’s refusal to certify the action in the US certainly makes a Canadian class action less likely. … Continue Reading

2013 Pension and Benefits Class Action Update

Posted in Certification, Class Actions, Settling

As many Canadian employers continue to amend the terms of pension and benefit plans, class action proceedings continue to be brought by current and former employees.  While more actions are ongoing than are described here, the following are some of 2013’s more notable matters.

In July 2013 the Ontario Superior Court released its decision in O’Neil v. GM.  The Court determined that an employer may modify benefits after retirement only where the contractual language clearly grants such a right.  In this case, it was determined that the benefit plan terms were not sufficiently clear to allow post-retirement benefit amendments.


On January 16, 2014 the Supreme Court of Canada released its decision in Vivendi Canada Inc.Continue Reading

Costs expectations in Ontario becoming proportionate to risk and complexity – Court awards $1.85 million

Posted in Certification

Arguments have been cropping up for some time that, given the increased ease of certifying class actions, certification may not be a battle worth fighting for defendants – especially if they cannot recover their costs.

As Justice Perell put it in Cavanaugh v. Grenville Christian College:

Inevitably, the loser of a certification motion, be it the plaintiff or the defendant, will argue that the winner’s claim for costs is excessive, unreasonable, and beyond the reasonable expectations of the losing party.[1]

Encouragingly for defendants, however, there has been a trend of higher costs awards for those who successfully resist certification.  Ontario costs awards relating to certification have been increasing over the years,[2] but the recent award of $1.85 million in the case of Fairview Donut Inc.… Continue Reading

Class Action Appeal Decisions to Come in 2014

Posted in Appeals

There are at least two interesting class action appeals coming up in 2014. Of interest to those involved in areas of business within federal jurisdiction, the Supreme Court will hear the Marcotte trilogy (Fédération des caisses Desjardins du Québec c. Marcotte, Bank of Montreal, et al. v. Réal Marcotte, et al., and Amex Bank of Canada v. Adams, et al.) in February, to consider whether provincial consumer protection legislation can extend to areas that would seem to be the subject of federal jurisdiction (in these cases banks, for invoicing credit card customers with foreign currency conversion charges allegedly in breach of Quebec consumer protection legislation).… Continue Reading

National Assembly of Quebec allows appeal (with leave) from decisions certifying a class action

Posted in Appeals

On February 17, 2014, a committee of the National Assembly of Quebec has adopted a modification to Bill 28 (An Act to establish the new Code of Civil Procedure) by which the upcoming new rules of procedure for Quebec will now allow appeals (with leave) from decisions certifying class action.  Such appeals (with or without leave) have always been forbidden in Quebec, thus creating an asymmetric regime for appeal of certification decision: petitioners could always appeal as of right a decision denying certification, while defendants could never appeal a decision certifying (in total or in part) a class action.  This will now change when the new rules of procedure will be formally adopted and come into force (later this year or in 2015). … Continue Reading

Vivendi Canada Inc. v. Dell’Anniello, 2014 SCC 1 – Quebec’s Uncommon Approach to Commonality

Posted in Certification, Class Actions, Trends

A single common question can justify the authorization (certification) of a class action in Quebec provided that it

“can serve to advance the resolution of the litigation with respect to all the members of the group” (par. 4)

In assessing the sufficiency of the common question put forward by the petitioner, the motions judge should look to this criterion alone and not ask  whether the common question necessarily leads to a common answer.… Continue Reading

2013 U.S. Class Action Decisions with the Potential to Affect Canadian Class Actions

Posted in Appeals, Certification, Competition, Securities

Outside of Canada, there were several appeal decisions from the U.S. Supreme Court in 2013 that may well prove to have an impact here in Canada.

In regards to class action waiver clauses, a six justice majority of the U.S. Supreme Court held, in American Express Co. v. Italian Colors Restaurant, that the Court could not invalidate an express class action waiver in an arbitration agreement and so the claims should be continued by arbitration (although, the three remaining justices handed down a very strong dissent). This is an issue that has had little comment so far in Canada and has yet to be considered by our own Supreme Court. … Continue Reading

B.C. Court of Appeal De-Certifies: Two Findings to Watch

Posted in Appeals, Certification

In B.C.’s first certification decision of 2014, and despite several very recent pro-certification rulings from the Supreme Court of Canada, defendants obtained a de-certification order.  In light of B.C.’s pro-certification bent (see my earlier blog on this issue HERE), this is significant.

The case, Wakelam v. Wyeth et al. (cited and reviewed in more detail by my colleague, Brandon Kain, HERE), is a claim against various manufacturers of children’s cough and cold medication for relief due to the manufacturers’ sale of the medicines prior to a Health Canada order requiring such medicines not be marketed for children under six years of age and requiring re-labelling to that effect. … Continue Reading

Overtime Class Actions Move Forward in 2013

Posted in Appeals, Certification

Canadian employers continue to watch as class actions regarding employees’ claims for “overtime” compensation move forward.  Although overtime class actions are relatively new to Canada, 2013 saw developments in the area.

Ontario’s Court of Appeal allowed the certification in two cases in 2012 (Fulawka and Fresco); and on March 21, 2013 the Supreme Court of Canada denied leave to appeal those decisions; meaning those class action claims may now proceed towards trial.  The Ontario Court of Appeal granted leave to appeal a Superior Court’s decision to deny certification in the Brown v. CIBC overtime claim, which could lead to certification being granted in 2014. … Continue Reading