A recent article, Procedure Trumps Substance: Alberta Court of Appeal Grants Certification in Warner v Smith & Nephew Inc, 2016 ABCA 223 (“Warner”), published on McCarthy Tétrault’s Canadian Class Actions Monitor blog may be of interest to readers of the Canadian Appeals Monitor blog. Kelli McAllister and Renee Reichelt explore the ongoing tension in certification motions where courts are to provide a meaningful screening device but refrain from assessing the merits of the claim.
In Warner, the Alberta Court of Appeal disagreed on whether to consider if a plaintiff can prove her claims at the certification … Continue Reading
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
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