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Category Archives: Class Actions

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Dead Again: Court of Appeal makes Clear that Certification of Misclassification Overtime Class Actions Remains as Hard as Ever

Posted in Case Comments, Class Actions

Last week, the Ontario Court of Appeal released its decision in Brown v. Canadian Imperial Bank of Commerce, upholding the Divisional Court’s decision affirming the dismissal of a certification motion in a proposed “misclassification” overtime class action (previously blogged about in the spring and fall of 2013). The appeal decision is of particular interest as “misclassification” overtime class actions (i.e. class actions alleging that an employer has misclassified employees and managers to avoid overtime pay obligations) were thought, by many observers, to have already been dealt a fatal blow by the Court in its prior decision in McCracken v. Continue Reading

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

Posted in Case Comments, Class Actions

The following post of the Canadian Class Actions Monitor blog may be of interest to readers of this blog: SCC Maintains Permissive View of Quebec Class Actions and confirms the Consumer Protection Act applies to Bank Conversion Charges.

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 … Continue Reading

Die Another Day: SCC Adjourns Appeal of National Class Actions Decision Sine Die

Posted in Case Comments, Class Actions, Conflict of Laws, Constitutional

Followers of Canadian class actions law will have longer to wait for a decision in the much anticipated appeal from the Manitoba Court of Appeal’s decision in Meeking v. Cash Store Inc. et al., 2013 MBCA 81. The appeal, which was scheduled to be heard on January 12, 2015 and expected to bring clarity on the issue of “national” class actions in Canada, was recently adjourned sine die.… Continue Reading

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

Posted in Case Comments, Class Actions, Securities

The following post on the Canadian Class Actions Monitor blog may be of interest to readers of this blog: Ontario Court of Appeal Turns Against Cross-Border Securities Class Actions.

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 … Continue Reading

Time to Leave: Supreme Court to Determine Securities Class Action Limitation Period

Posted in Case Comments, Class Actions, Securities

The Supreme Court of Canada has granted leave to appeal in a case that will determine how to apply the statutory limitation period for investors in Ontario who decide to sue public issuers and their executives under the Securities  Act.  Given similar legislation in other provinces, the case will be significant for investors and public issuers across Canada.… 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 … Continue Reading

Halliburton: Deepening the Divide Between Certification of US and Canadian Securities Class Actions

Posted in Case Comments, Class Actions, Securities

Everyone has been talking about the recent decision from the US Supreme Court in Halliburton Co v Erica P. John Fund Inc (Halliburton) and its rulings regarding the “fraud on the market” doctrine in US securities class action litigation (previously reported on here and here). In Canada, many are likely wondering about the potential impact of the decision here.  However, what this case shows is a deepening divide between the certification process of such actions in the US and Canada. In the US, the process is becoming more difficult for investors, while Canada remains a very pro-certification … Continue Reading

Class, Do Your Homework: Causation and Damages Methodologies at Certification

Posted in Case Comments, Class Actions, Corporate Law, Procedure, Torts

Overview

In Andriuk v. Merrill Lynch Canada Inc., the Alberta Court of Appeal affirmed a certification judge’s decision that an action, commenced pursuant to Alberta’s Class Proceedings Act, did not meet the requirements for certification of a class proceeding, based on a failure to demonstrate a viable methodology for establishing causation and damages on a class-wide basis.… Continue Reading

The Importance of Borders in a Borderless World: Ontario Court Stays Action for U.S. Transportation Taxes

Posted in Case Comments, Class Actions, Conflict of Laws, Tax

In Prince v. ACE Aviation Holdings Inc., the Ontario Court of Appeal stayed a class action based on allegations that Air Canada had improperly collected transportation taxes levied under the U.S. Internal Revenue Code (the “Code”). The Court’s decision highlights the difficulty in predicting the outcome of jurisdictional disputes involving e-commerce transactions. In addition, it illustrates the reluctance of our courts to permit class actions based on claims that engage the territorial sovereignty of other nations.

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Summary Judgment – The Cultural Shift Has Started

Posted in Case Comments, Class Actions, Energy, Manufacturing, Torts

Earlier this year we discussed on this blog the new “sufficient appreciation test” set out by the Supreme Court in Hryniak v. Mauldin, which really represents a cultural shift in the availability of summary judgment to the parties.

In Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108, the Alberta Court of Appeal applied the test to a certified class action about Rylands v. Fletcher liability.

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Hot Off the Press – Doing Business in Canada: Navigating Opportunities for Investment and Growth

Posted in Alternative Dispute Resolution, Class Actions

If your organization is currently thinking about establishing or acquiring a business in Canada, the newest edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information and insightful commentary on different areas of law.

The book includes a chapter on dispute resolution, with sections on:

  • Canada’s court system
  • class actions
  • alternative dispute resolution
  • electronic discovery

After downloading

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Multi-Jurisdictional Class Actions: The Creation of Barriers by the BC Court of Appeal

Posted in Case Comments, Class Actions, Constitutional

In a surprise decision, the British Columbia Court of Appeal has broken with the superior courts of British Columbia, Ontario and Quebec by holding that constitutional limits prevent a superior court judge from sitting outside of his own province. The Court of Appeal’s decision suggests limits to the inherent jurisdiction and discretion of superior courts and will have profound effects upon the ease and efficiency with which judges can hear multi-jurisdictional matters, in particular class actions. Decisions by the Court of Appeal in Ontario and Quebec  on the same issue are pending.

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Securities Secondary Market Liability in Quebec To Be Discussed by the Supreme Court of Canada

Posted in Case Comments, Case Previews, Class Actions, Securities

On February 20, 2014, the Supreme Court of Canada granted leave to appeal from the first decision from the Québec Court of Appeal on the statutory secondary market liability regime adopted in 2007, pursuant to a reform of the Quebec Securities Act, R.S.Q. c. V-1.1 (“QSA”).

Material Facts

Under the QSA, Theratechnologies inc. (“Thera”) is a reporting issuer which must comply with continuous disclosure obligations. In 2009, Thera filed an application to the Food and Drug Administration (“FDA”) to commercialize a major drug called Tesamoreline. In the course of the approval process, on May 25, 2010, the FDA … Continue Reading

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

Posted in Case Comments, Class Actions, Securities

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.  In Green v. CIBC, 2014 ONCA 90, a five-member panel of the Court overturned Sharma v. Timminco, 2012 ONCA 107 and gave class action plaintiffs the protection of s. 28Continue Reading

The Supreme Court Vivendi Decision and its Not Insignificant Implications

Posted in Case Comments, Class Actions

The first judgment of 2014 rendered by the Supreme Court of Canada, Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1 (“Vivendi”), deals with the conditions for authorization of a class action in Quebec. The judgment has several important implications for Canadian businesses that are likely to be involved in class action proceedings.

First, the Court held that the “commonality of issues” test for authorization is satisfied by even a single common question, as long as it can serve to advance the resolution of a “not insignificant portion of the dispute”. Second, the Court stated that the answer … Continue Reading

ABCA Opens the Door to Punitive Damages for Surviving Dependents

Posted in Case Comments, Class Actions, Torts

A recent decision of the Alberta Court of Appeal has opened the door for awarding punitive damages to surviving dependants under Alberta’s Fatal Accidents Act (the “FAA”). The FAA creates a statutory cause of action for dependants of deceased persons where death was caused by a wrongful act. Similar legislation in other provinces has been held to preclude claims for punitive and other non-compensatory damages. Until now, the availability of punitive damages under the FAA was uncertain.

Background

Steinkrauss v. Afridi is a medical malpractice case. The deceased, Mrs. Steinkrauss, was a patient of Dr. Afridi. She sued … Continue Reading

Regulatory Settlement Will Not Prevent Class Action: SCC Certifies Fischer

Posted in Class Actions, Regulatory

The following article may be of interest to readers of this blog: Regulatory Settlement Will Not Prevent Class Action: SCC Certifies Fischer

On December 12, 2013, the Supreme Court of Canada released its much anticipated decision in AIC Limited v. Fischer, 2013 SCC 69. The Court unanimously held that a restitution payment in settlement of regulatory proceedings does not preclude certification of a class action on behalf of the same investors who received compensation through the regulatory process. Read more.… Continue Reading

Vancouver Student Protesters “Stripped” of Class Proceeding

Posted in Case Comments, Charter of Rights, Class Actions

The British Columbia Court of Appeal recently upheld the denial of certification of a proposed class action involving routine strip searches at a Vancouver city jail. Thorburn v. British Columbia (Public Safety and Solicitor General) illustrates the difficulty of certification in cases that require an individual inquiry into the facts and circumstances unique to each class member.

On April 1, 2003, Vancouver students Elise Thorburn and Christopher Jacob were arrested on charges of mischief for peacefully protesting outside the U.S. Consulate in Vancouver. Thorburn and Jacob were taken to a city jail (the “Jail”) where they received a pat-down search … Continue Reading

Supreme Court Releases the Indirect Purchaser Trilogy

Posted in Class Actions, Competition

The following article by Sarah Corman and Shaun Finn may be of interest to readers of this blog:

Supreme Court Releases the Indirect Purchaser Trilogy

In an important trilogy released October 31, 2013, the Supreme Court of Canada recognized the right of indirect purchasers to assert competition claims while confirming its rejection of the “passing on” defence in this context. Read more.… Continue Reading

Court of Appeal to Revisit Overtime Class Action Certification

Posted in Case Comments, Class Actions, Labour and Employment

The Ontario Court of Appeal recently decided it will hear the appeal in Brown v. Canadian Imperial Bank of Commerce, the Divisional Court’s decision affirming Strathy J.’s denial of certification in a proposed “misclassification” overtime class action which we blogged about in the spring. The leave decision represents an unexpectedly quick return of overtime class actions to the Court of Appeal following last year’s “overtime trilogy” (Fulawka, Fresco, and McCracken). In the trilogy, the Court of Appeal upheld certification in two “off the clock” class actions, but refused certification in McCracken which, like Brown,

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NZSC Provides Guidance on Litigation Funding Agreements

Posted in Case Comments, Class Actions, Torts

The New Zealand Supreme Court rendered an interesting decision on litigation funding agreements, more specifically on the extent to which they may be invalid based on abuse of process. Litigation funding agreements are a big issue in Canada right now, particularly in the context of class actions.

Background

In Waterhouse v. Contractors Bonding Limited ([2013] NZSC 89) the Supreme Court of New Zealand considered whether the plaintiffs should be ordered to disclose a litigation funding agreement under the abuse of process principles.

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What will Justice Nadon’s appointment bring to the Supreme Court?

Posted in Aboriginal, Administrative, Charter of Rights, Class Actions, Competition, Intellectual Property, Tax

Background

Earlier this week, the Prime Minister surprised many Supreme Court-watchers by nominating the Honourable Marc Nadon to replace Justice Fish at the Supreme Court of Canada. Given this recent appointment, the Canadian Appeals Monitor has taken a look at Nadon J.’s jurisprudential legacy to date and identified key cases which illustrate his judicial leanings, especially as it applies to Canadian businesses and professions. The Canadian Appeals Monitor has also looked at some of the cases that Nadon has argued to get better insights into what kind of judge he is likely to be in the Supreme Court. 

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The Second Opinion: Can an Ontario Court Assume Jurisdiction Over Non-resident Class Members?

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

Posted in Class Actions, The Second Opinion

Is an Ontario-based inter-provincial class settlement enforceable in Manitoba?  The answer depends in part on whether an Ontario court can properly exercise jurisdiction over non-resident class members.  The Manitoba Court of Appeal recently provided guidance on these important issues in the first appellate case to comprehensively address these questions since the Supreme Court of Canada revamped the test for jurisdiction in its Van Breda decision.

The pertinent facts of the decision in Meeking v. Cash Store Inc., 2013 MBCA 81 were as follows.  A class action relating to broker fees that were alleged to have been charged  by small loan … Continue Reading

Hail to the Chief: McLachlin C.J.C. Becomes Canada’s Longest-Serving Chief Justice

Posted in Class Actions, Contracts, Features, Torts

Next month marks the bicentennial of the birth of Sir William Johnstone Ritchie, one of the first judges appointed to the Supreme Court of Canada and Chief Justice from 1879 to 1892. Why are we thinking about him this week? Until today, he was the longest serving Chief Justice of Canada. That title now belongs to Chief Justice Beverley McLachlin, who has held the position since January 7, 2000. Having served on the Court for nearly a quarter century – most of that time as Chief Justice – her impressive legacy to date includes the development of the law in … Continue Reading