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Canadian Class Actions Monitor

Tag Archives: Ontario Court of Appeal

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

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

Proactive Monitoring: Lack of Employee Oversight Leads to the Certification of the first Privacy Class Action based on the novel tort of “intrusion upon seclusion”

Posted in Certification, Class Actions

On June 6, 2014, the Ontario Superior Court certified the first privacy class action based on the novel tort of “intrusion upon seclusion”, recognised in 2012 by the Ontario Court of Appeal in Jones v. Tsige.[1]

In Evans v. Bank of Nova Scotia[2], the plaintiffs sued the Bank and its employee for damages through this new tort. This decision is of interest for any employer who oversee employees that have access to customers’ confidential and financial data.

The Facts

Richard Wilson, Mortgage Administration Officer at the Bank, admitted he had access to highly confidential customer information that his girlfriend disseminated to third parties for fraudulent and improper purposes.… Continue Reading

The Change Up: Class Action Certifications Reformulated on Appeal

Posted in Certification, Class Actions

A certification application is a necessary step in which a proposed representative plaintiff shows the court why the action should proceed as a class action. In order to be certified, the proposed representative plaintiff must meet a legislated five-part test. This legislated test is relatively uniform among the common law provinces.[1] However, the willingness of courts to revisit these statutory requirements and permit a plaintiff to rework their certification application on appeal (to address the deficiencies that caused them to fail certification), varies among the provinces.

In a recent decision, Andriuk v Merrill Lynch, the Alberta Court of Appeal dismissed an appeal of a denied certification motion.… Continue Reading

The Final Word (Again?) On Limitation Periods for Securities Class Actions

Posted in Case Comments, Class Actions, Securities

The following post by Elder Marques and Timothy Chapman-Smith on our Canadian Appeals Monitor blog may be of interest to readers of this blog:

The Final Word (Again?) On Limitation Periods for Securities Class Actions

The Ontario Court of Appeal’s decision in Green represents yet another plaintiff-friendly class action development from the Canadian courts, this time in the context of limitation periods.  Less than two years after its watershed decision in Timminco, Ontario’s highest court reversed itself and in a decision authored by Feldman J.A. re-cast the limitation period regime governing secondary market civil liability under the Ontario Securities Act. … 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

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