Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Category Archives: Class Actions

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The Second Opinion: Appellate Court Applies Provincial Consumer Protection Laws in a Class Proceeding Against a Federally-Regulated Company

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

By Hovsep Afarian on Posted in Class Actions, The Second Opinion

In a recent decision of great importance to federally-regulated entities such as banks, airlines and navigation and shipping companies, the B.C. Court of Appeal ruled that a provincial consumer protection statute applies to airlines:  Unlu v. Lufthansa et al, 2013 BCCA 112. The Unlu case involves a putative class action against various airlines alleging deceptive… → Read More

More than “Lip Service” to Limited Liability: Personal Liability of Directors and Causation of Damages for Misrepresentation to Investors

By Timothy Froese on Posted in Case Comments, Class Actions, Torts

Will a director or officer of a corporation or limited liability partnership be personally liable for the losses of investors who relied upon his or her inaccurate statements when deciding to invest in a corporate venture? What if the inaccurate statements did not involve matters that were proven to cause the investment losses? The Alberta… → Read More

Quebec Court of Appeal Confirms the Decision to Deny Certification of a Drug Related Class Action

By Marie-Hélène Beaudoin on Posted in Case Comments, Class Actions, Health

Different times call for different measures, and the jurisprudence governing Quebec class actions is no exception to this rule. While 2011 and the beginning of 2012 brought waves of decisions in favour of certification, the end of 2012 seemed to bring more circumspection. This trend seems to continue in 2013, notably in a decision rendered… → Read More

Federal Court of Appeal Holds that Competition Act Claims are Arbitrable

By Byron Shaw on Posted in Case Comments, Class Actions

In a decision released on February 14, 2013, the Federal Court of Appeal stayed a proposed class action alleging breaches of the Competition Act on the basis that the parties had agreed to a mandatory arbitration process. The Court of Appeal’s decision in Murphy v. Amway Canada Corporation deals with the difficult issue of federal and provincial court… → Read More

Ontario Divisional Court Upholds Denial of Certification of Pharmaceutical Class Action Against AstraZeneca

By Frank McLaughlin and Brandon Kain on Posted in Case Comments, Class Actions, Health

In a rare and dramatic oral ruling from the bench, the Ontario Divisional Court yesterday upheld the May 7, 2012 decision of Horkins J. in Martin v. AstraZeneca Pharmaceuticals Plc, 2012 ONSC 2744 to deny certification of a proposed national class action relating to the anti-psychotic medicine, Seroquel®. The Divisional Court’s judgment marks the first… → Read More

Consumer Class Actions: BCCA Limits Availability of “Waiver of Tort” Claims but Expands Jurisdictional Reach in Conspiracy Claims

By Laurie Baptiste on Posted in Case Comments, Class Actions, Competition, Manufacturing, Torts

Introduction The SCC recently dismissed two leave applications from important (but unrelated) decisions of the BCCA in the consumer class action realm. One decision, in a rather noteworthy step, engages in an extensive analysis of and narrows the availability of the “waiver of tort” doctrine in claims based on alleged breaches of consumer protection type… → Read More

Top Appeals of 2013: The Appeals Monitor Looks Forward

By Elder C. Marques and Timothy D. Chapman-Smith on Posted in Bankruptcy and Debt, Case Previews, Class Actions, Features, Procedure, Professions, Torts

“Prediction is very difficult, especially about the future.” – Niels Bohr (1885-1962) “Weatherman wet-fingers the sky He pokes it out, he pulls it in He don’t know why.” – Gordon Downie (1964- )   In the spirit of the season, Canadian Appeals Monitor has decided not only to look back on the key appeals of… → Read More

Third time’s the charm – The United States Supreme Court to consider the availability of class arbitration for the third time in American Express Company v. Italian Colors Restaurant

By Ronald Podolny on Posted in Case Comments, Class Actions, Procedure, Torts

Introduction The United States Supreme Court has granted leave to appeal in a case that will clarify whether federal arbitration law permits the invalidation of arbitration agreements on the basis that they do not permit class arbitration.  This decision will have implications on the development of class arbitration, an emerging area of both American and… → Read More

Round and Round We Go: BCCA Declines Opportunity to Shape Leave Test in Secondary Market Class Actions

By Elder C. Marques and Helen Burnett on Posted in Case Comments, Class Actions, Corporate Law, Procedure, Securities, Torts

In a decision released this month, the British Columbia Court of Appeal has declined to enter the national fray on the question of how courts should interpret statutory leave requirements adopted throughout Canada in recent securities legislation amendments.  These leave requirements impose a preliminary hurdle for plaintiffs seeking to advance statutory secondary market class action… → Read More

Do Equitable Ends Justify Expanding “Unlawful Means”? The Supreme Court of Canada Grants Leave in A.I. Enterprises Ltd. v. Bram Enterprises Ltd.

By Ronald Podolny on Posted in Case Comments, Class Actions, Competition, Contracts, Insurance, Procedure, Torts

Introduction The Supreme Court has granted to leave to appeal in a case that has the potential to elucidate an area of tort law where confusion has reigned for far too long. In the words of the House of Lords, “the law in this area is a mess.” The subject that has engendered this confusion is the… → Read More

The Penalty Doctrine: Focus on Substance Not Form Says The High Court of Australia

By Carole Piovesan on Posted in Case Comments, Class Actions, Contracts, Corporate Law, Financial Services

When is a contractual term a penalty? Traditionally, a penalty has been characterized as a provision that results in unconscionable and disproportionate compensation for breach of contract. The recent decision of Australia’s High Court in Andrews v. Australia and New Zealand Banking Group Ltd (“Andrews”) has widened the scope of the common law penalty doctrine… → Read More

Supreme Court of Canada to Rule on “Preferable Procedure” Inquiry in Class Actions

By Carole Piovesan on Posted in Case Previews, Class Actions, Procedure

The Supreme Court of Canada (SCC) recently granted leave to appeal the Ontario Court of Appeal’s decision in AIC Limited et al. v. Dennis Fischer et al. The Fisher decision considers the important question of whether a successful OSC proceeding, resulting in the payment of $205 million in compensation to affected investor mutual funds, prohibits… → Read More

Is one “common issue” enough to authorize a class action in Canada? SCC grants leave to appeal in Vivendi Canada Inc. v. Dell’Aniello

By Marc-Andre Russell on Posted in Case Previews, Class Actions, Labour and Employment

On August 9, 2012, the Supreme Court of Canada granted leave to appeal from the Quebec Court of Appeal’s decision in Vivendi Canada Inc. v. Dell’Aniello, a case concerning the requirement that there be “identical, similar, or related questions of law or fact” when authorizing a class action in Quebec. While this requirement is found… → Read More

Time’s Up: SCC Denies Leave to Appeal in Sharma v. Timminco

By Brandon Kain and Michael Rosenberg on Posted in Case Comments, Class Actions

In an important new ruling with national implications, the Supreme Court of Canada has denied leave to appeal from the Ontario Court of Appeal’s watershed decision in Sharma v. Timminco Limited, thereby establishing Sharma as the governing law for the statutory limitation period for secondary market securities class actions in Ontario, and possibly throughout Canada. … → Read More

Hot Off the Press – World Class Actions: A Guide to Group and Representative Actions Around the Globe

By McCarthy Tétrault LLP on Posted in Aboriginal, Class Actions, Communications, Construction and Real Estate, Energy, Financial Services, Franchise and Distribution, Health, Insurance, Media, Municipal, Procedure, Professions, Securities, Transportation

In the newly published World Class Actions: A Guide to Group and Representative Actions Around the Globe, McCarthy Tétrault litigators David Hamer and Shane D’Souza co-authored the “Multijurisdictional and Transnational Class Litigation: Lawsuits Heard ‘Round the World” chapter. The chapter offers guidance to international lawyers who represent clients involved in cross-border, multinational and international class… → Read More

Back to Basic: US Supreme Court to Hear Amgen and Clarify “Fraud-on-the-Market” Reliance Presumption in Class Actions

By Elder C. Marques on Posted in Case Previews, Class Actions, Corporate Law, Securities, Torts

The Supreme Court of the United States has announced it will hear the appeal in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, setting the stage for an important clarification of the use of the “fraud-on-the-market” reliance presumption in U.S. securities class actions. The Court first set out the presumption in its 1988 landmark… → Read More

A Rascal of a Doctrine: The Elusive Definition of Resulting Trust

By Ronald Podolny on Posted in Bankruptcy and Debt, Case Previews, Class Actions, Contracts

The Supreme Court of Canada has recently granted leave to appeal from the judgment of the British Columbia Court of Appeal in Edward Sumio Nishi v. Rascal Trucking Ltd. This appeal focuses on the test for a resulting trust in the commercial context. The decision will be of interest to a broad range of business… → Read More

Hot Off the Press – Annual Review of Developments in Business and Corporate Litigation

By McCarthy Tétrault LLP on Posted in Class Actions

For those who may be interested, three of McCarthy Tétrault’s litigators authored a chapter on class actions in the ABA’s recently published 2012 Annual Review of Developments in Business and Corporate Litigation. “Cross-Border and Multi-Jurisdiction Class Actions – A Canadian Perspective”, authored by Anthony Alexander, Christopher Hubbard and Elder Marques, discusses how Canadian courts have… → Read More

Shoulda Woulda? Alberta Court of Appeal Considers the Mental Element of the Tort of Civil Conspiracy

By Ronald Podolny on Posted in Case Comments, Class Actions, Professions, Torts

Introduction The Alberta Court of Appeal has provided its latest contribution to the analysis of the tort of civil conspiracy. The case’s importance lies in its consideration of the mental element of the tort. The case is also interesting for the absence of any reference to the recent Ontario Court of Appeal jurisprudence on the matter,… → Read More

Set the Controls for the Heart of the Sun: ONCA Allows Securities Act Claims Against Foreign-Listed Issuers in Canadian Solar

By Brandon Kain on Posted in Case Comments, Class Actions, Conflict of Laws, Constitutional, Securities

In a recent judgment that is sure to become a landmark in the growing field of Canadian securities class actions, the Ontario Court of Appeal has confirmed that the statutory cause of action for secondary market misrepresentations can be asserted against issuers whose shares are listed solely on a foreign exchange.  The ruling in Abdula v. Canadian Solar opens… → Read More

FCA Narrows the Limitation Period Defence in Civil Competition Act Claims

By Ronald Podolny and Brandon Kain on Posted in Case Comments, Class Actions, Competition, Procedure

Introduction The Federal Court of Appeal has ruled that the “ongoing effects” of a conspiracy do not extend the applicable limitation period for the purposes of a civil action brought under section 36(1) of the Competition Act for a criminal conspiracy contrary to section 45(1). The Court of Appeal’s affirmation of the lower Court’s decision also… → Read More