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Canadian Class Actions Monitor

Tag Archives: class action

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

Google Wallet Privacy Class Action To Proceed

Posted in Class Actions

Despite efforts to dismiss a potential class in which it is alleged that Google breached the terms of its Terms of Service, U.S. District Judge Beth Labson Freeman has ruled in Svenson et al v. Google Inc et al. that most of the claims asserted by the plaintiff, Alice Svenson, against Google Inc. and Google Payment Corporation may proceed.

Read more in the original post by our colleagues at CyberLex, McCarthy Tétrault’s blog focusing on cybersecurity, privacy and data protection law.

 … Continue Reading

Is the Supreme Court of Canada becoming disinterested in class action appeals?

Posted in Appeals, Class Actions

On March 26, 2015, the Supreme Court of Canada refused to grant leave to appeal in Kaynes v. BP, Plc, a proposed class action for secondary market misrepresentation against the respondent, BP. The refusal leaves in place the Ontario Court of Appeal’s judgment, which held that Ontario courts should decline jurisdiction over claims by Canadian residents who purchased shares on foreign exchanges because foreign courts were better positioned to decide those cases. The decision put a damper on recent enthusiasm for global securities class actions.… 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

Summary of Société Financière Manuvie v. Dominic D’Alessandro and others

Posted in Appeals, Case Comments, Class Actions

Confidential, but relevant: documents provided to OSFI must be communicated

A.          Overview of the Appeal

The appellant Manulife appealed against an interlocutory judgment rendered on May 7, 2014 by the Superior Court, District of Quebec (Justice Alicia Soldevila), dismissing its objection to the communication of documents based on an alleged statutory immunity found at sections 2 and 3 of the Supervisory Information (Insurance Companies) Regulations (SOR/2001-56) (the “Regulation”). Justice Soldevila thus ordered the communication of four (4) non-redacted documents and fifty-seven (57) other documents, mainly on the basis that notwithstanding their “confidential nature”, these documents appeared relevant to the issues to be debated on the merits.… 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

Alleged Crime, Punishment…and Disclosure: a Summary of the Supreme Court’s Decision in Jacques v. Imperial Oil

Posted in Class Actions

Can electronic surveillance conducted in the context of a criminal investigation be disclosed to a plaintiff in a class action? Yes, according to a majority of the Supreme Court of Canada in Imperial oil v. Jacques, 2014 SCC 66.

In this case, the Competition Bureau of Canada had obtained permission to conduct electronic surveillance of various individuals who were suspected of fixing gas prices in certain regions of Quebec. The operation, code-named “Octane,” intercepted and recorded more than 220,000 private communications.… Continue Reading

Historic Class Action Settlement and Distribution Protocol

Posted in Class Actions, Competition, Settling

The final settlements were approved yesterday in a series of settlements that represent the second-largest recovery in Canadian competition class action history.  Pro-sys Consultants Ltd. v. Infineon Technologies AG et al, 2014 BCSC 1936 alleged a price-fixing conspiracy among international manufacturers of dynamic random access memory (DRAM), a semiconductor memory product that provides high speed storage and retrieval of information found in computers, servers and other electronic equipment.  The class includes purchasers at all levels of the distribution chain.  Analogous proceedings were also brought in Ontario and Quebec.… Continue Reading

SCC Maintains Permissive View of Quebec Class Actions and confirms the Consumer Protection Act applies to Bank Conversion Charges

Posted in Appeals, Class Actions

In Bank of Montreal v. Marcotte, 2014 SCC 55, the Supreme Court dismissed appeals brought by various banks contesting the applicability of the Quebec Consumer Protection Act (“CPA”) to conversion charges charged by banks of foreign currency transactions. The Court concluded that certain disclosure provisions of the CPA did apply to the conversion charges in issue.  The Court rejected the applicability of the doctrines of inter-jurisdictional immunity and paramountcy invoked by the banks.  The Court concluded that section 12 CPA had been breached (giving rise to a reduction in obligations and punitive damages). The Court also held that a representative plaintiff need not have a cause of action against each of the named defendants, that collective recovery and punitive damages are both available, and that punitive damages may be awarded if the impugned behaviour was “lax, passive or ignorant with respect to consumers’ rights.”… 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

Ontario Court of Appeal Turns Against Cross-Border Securities Class Actions

Posted in Class Actions, Securities

In the recent decision of Kaynes v. BP, PLC, 2014 ONCA 580, the Ontario Court of Appeal stayed a proposed secondary market securities class action on the basis of forum non conveniens.  Writing for a unanimous Court of Appeal, Sharpe J.A. found that Ontario could assume jurisdiction over claims by Canadian residents who purchased their shares on foreign exchanges.  Nevertheless, he held that Ontario should decline jurisdiction on the basis that foreign courts were better positioned to decide claims arising from transactions on foreign exchanges.

Kaynes puts a damper on Ontario’s recent enthusiasm for global securities class actions.  Whereas the province once seemed destined to become a “Shang-ri-la” for cross-border litigation, global claims will now be subjected to closer scrutiny as courts ponder whether the matter should be adjudicated elsewhere.… Continue Reading

Court Approves Unique Overtime Class Action Settlement

Posted in Class Actions, Settling

Canadian employers have been watching a series of class action claims, with employees claiming hundreds of millions of dollars in unpaid overtime, since 2007.  In January 2014 we summarized the progress of those cases here.  Banks have been the primary focus of the class-action claims, but more recently claims against a transportation company have also been brought forward.  While individual overtime claims are generally not substantial, the claims can balloon when a representative plaintiff claims unpaid overtime, not only for themselves but on behalf of colleagues as well.

Case Background

Cindy Fulawka (“Fulawka”) was employed at various Bank of Nova Scotia (“BNS”) branches and held various positions such as Personal Banking Officer and Account Manager.… Continue Reading

Trends in US Class Actions: More Consumer Class Action Settlements and more Privacy Cases

Posted in Class Actions, Settling

A study by NERA Economic Consulting released July 22, 2014 shows that consumer class action settlements in the US have increased steadily over the past four years (the “Study Period”).  The study also showed that cases relating to privacy violations, specifically cases relating to SPAM and to improper use of personal information, increased significantly over the Study Period.… 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

La Cour supérieure rejette un recours collectif sur le fond

Posted in Class Actions

I.              Introduction

Dans l’affaire Fortin c. Mazda Canada inc., 2014 QCCS 2617, la Cour supérieure du Québec a rejeté un recours collectif sur le fond (https://www.canlii.org/fr/qc/qccs/doc/2014/2014qccs2617/2014qccs2617.pdf).

Le recours collectif recherchait une diminution de prix, des dommages-intérêts et des dommages punitifs en raison d’un système de verrouillage prétendument inadéquat des véhicules de marque et modèle Mazda 3 pour les années 2004 à 2007. Selon les allégations de la demanderesse, il était possible d’ouvrir par effraction une porte verrouillée à l’aide d’une simple pression ou d’un coup de pied ou de poing au-dessus de la poignée de la portière avant, côté conducteur.… 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

Cy-Pres Awards: Achieving the Goals of Class Actions?

Posted in Awards and Recognitions, Class Actions

In the first set of class action decisions handed down by the Supreme Court of Canada, the Court stated that the advantages of class actions are “access to justice”, “judicial economy” and “behaviour modification”.[1]  These advantages, often described as the goals of class actions, have been used in innumerable class action decisions since 2001.  It remains difficult to say what role these advantages or goals really play in class actions.

A case in point is the phenomenon of cy-pres awards.  Cy-pres (“as near as”) awards are used when it is too costly, or impossible, to identify all members of a class or to distribute a settlement fund directly to class members. … Continue Reading

Arbitration Clauses and Class Action Risk in Consumer Contracts: the Variable Canadian Landscape

Posted in Class Actions

The recent Saskatchewan Court of Appeal decision in Chatfiled v Saskatchewan Telecommunications has emphasized the need for corporations entering into consumer contracts to be mindful of  provincial legislation affecting the enforceability of arbitration clauses.

In Chatfield, the Court followed the Supreme Court of Canada’s reasoning in Seidal v TELUS Communications Inc (covered here), which held that some claims of class members bound by an arbitration clause were excluded from a class action. Despite following the Supreme Court of Canada’s reasoning, the Saskatchewan Court of Appeal arrived at a different result. In TELUS, the arbitration clause could not prohibit a class action relating to particular provisions of British Colombia’s Business Practices and Consumer Protection Act, which provisions were interpreted as preventing consumers from waiving their rights to legal remedies including class actions.… 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

Discovery in Class Actions: The Scope of Parties’ Obligations

Posted in Class Actions

“Discovery” is a broad term that describes the procedure by which evidence is obtained and collected for the purposes of litigation. Each party has the right to see all of the relevant documentary evidence in a party’s possession, and to examine the other parties orally, in order to understand the evidence that will be used to prove the claim and advance the defence.  Discovery is potentially more challenging in a class action than in other types of litigation, due to the time frame of the events at issue, complexity of the subject matter, and prospect that litigation will span a number of years.… Continue Reading