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

Tag Archives: class actions

This Week at the SCC (24/10/2014)

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

Posted in The SCC Monitor

The Supreme Court this week issued a number of leave-to-appeal rulings likely to be of interest to Canadian businesses and professionals.  Four such leave-to-appeal requests were refused, and one was remanded.

The following applications were refused:

  • Leave-to-appeal from the Alberta ruling in Somji v. Wilson, 2014 ABCA 35, was dismissed.  The Court of Appeal had affirmed the striking of claims against both (i) a trial judge (who had granted default judgment against the appellants), and (ii) the respondents (who were alleged to have acted deceitfully in obtaining the default judgment).
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The Second Opinion: “The Class Action…is Frequently Abused” — Judge Posner Provides Unvarnished Commentary on Class Proceedings

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

Posted in Features, The Second Opinion

For the Canadian class actions defence bar — which must occasionally feel disheartened by the unwavering enthusiasm with which our courts have championed class proceedings — the recent ruling in Eubank v. Pella Corporation (7th Cir. June 2, 2014) represents a breath of fresh air from south of the border.

Judge Richard Posner, speaking for a unanimous panel of the Seventh Circuit Court of Appeal, uses blunt and forthright language — alien to a Canadian ear — in acknowledging the risks to justice created by such proceedings.  He places particular emphasis on the inherent conflicts faced by plaintiffs’ class counsel.… Continue Reading

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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10 Most Important Appeals of 2013

Posted in Case Comments, Features

 In order to help lawyers argue about cases at holiday parties, the Appeals Monitor is happy to once again present our countdown of the most significant civil appeals of 2013 that are sure to impact Canadian businesses.  Watch out soon for a review of the upcoming appeal decisions that are likely to be big stories in 2014


Sable Offshore Energy: Is a settlement with one defendant really without prejudice?


Sable Offshore Energy Inc. v. Ameron International Corp., previously reported on here, is a significant development in the law of settlement privilege and will affect legal strategy … Continue Reading

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.


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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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, Features, 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

This Week at the SCC (24/05/2013)

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

Posted in The SCC Monitor

The Supreme Court of Canada has released two judgments and one leave-to-appeal ruling likely to be of interest to Canadian business and professionals.

In Cojocaru v. British Columbia Women’s Hospital and Health Centre, a unanimous Supreme Court overturned (in part) a ruling of the British Columbia Court of Appeal.  The BCCA had ruled that the trial judgment must be set aside because the trial judge had, in his reasons, incorporated very large portions of the submissions made by counsel for the plaintiff.  Chief Justice McLachlin concluded that the incorporation of parties’ submissions in judgments is common practice in both … Continue Reading

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

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 time that an Ontario appellate court has denied certification of a pharmaceutical or medical device class action against a private defendant, and only the second time that a Canadian appellate court has done so in a common law province.

As discussed in a previous Continue Reading

The Second Opinion: Ontario Court of Appeal Rejects “Conditional” Certification of Class Actions

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

Posted in Features, The Second Opinion

The Ontario Court of Appeal has released a new ruling which holds that motion judges do not have jurisdiction to “conditionally” certify class actions that fail to disclose a cause of action under s. 5(1)(a) of the Ontario Class Proceedings Act (“CPA“).

The decision in Brown v. Canada (A.G.), 2013 ONCA 18 concerns a proposed class action against the federal government, which alleges that it wrongfully delegated its duties in respect of Aboriginal persons by entering into an agreement (the “1965 Agreement”) that enabled the province of Ontario to place thousands of Aboriginal children in non-aboriginal foster care … Continue Reading

Top Appeals of 2012: The Appeals Monitor Looks Back

Posted in Case Comments, Class Actions, Features, Torts

As the year draws to a close, we thought it appropriate to look back at the most significant civil appeals of 2012, and to look forward to the appeals in 2013 that are sure to impact Canadian businesses and professions. In this year-end post – the first of a special two-part series – Canadian Appeals Monitor will review four areas in which appellate courts were particularly active in 2012: (1) class actions; (2) copyright; (3) private international law; and (4) torts. Some of these cases have been written about previously on this blog, whereas others are new. We hope you … Continue Reading

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

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 decision in Basic Inc. v. Levinson, 485 U.S. 224 (1988). The Amgen decision will have an impact in Canada, where courts have grappled with the question of reliance in such cases. Generally, Canadian courts have been sceptical about importing a “fraud-on-the-market” approach, but … Continue Reading

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

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 applied jurisdictional principles in class actions, both in assessing whether certification is appropriate and in enforcing foreign class action orders.

This is the first edition of the annual review that includes content on Canadian legal developments. You can read more on our Continue Reading

Vale Vindicated: Ontario Court of Appeal Finds no Liability in Toxic Tort Class Action; Plaintiffs Seek Leave to Appeal to the SCC

Posted in Case Comments, Class Actions, Torts

Vale Canada Ltd. (formerly Inco Ltd.) was vindicated in a high-profile appeal that clarifies the law of environmental torts. In Smith v. Inco Ltd., (formerly Pearson v. Inco Ltd.), the Ontario Court of Appeal reversed a trial decision awarding $36 million to residents of Port Colborne who had alleged that Vale’s refinery diminished their property values. The Court of Appeal held that the trial judge erred in finding Vale liable in private nuisance and strict liability. In a rare move, the Court of Appeal also found that the plaintiffs had failed to prove any damages. Dissatisfied with this decisive … Continue Reading

Corrigendum to “OCA to Decide Which of Two Law Firms to Prosecute Class Action”

Posted in Case Comments, Class Actions

In Sharma v. Timminco Limited, heard on November 2, 2011, the issue for the Ontario Court of Appeal was whether the Class Proceedings Act, s. 28, tolled the limitations period under s. 138.14 of the Securities Act. On November 10, 2011, we mistakenly reported that the appeal arose from a separate decision from the proceedings concerning which of two law firms would have carriage of the class proceeding.

Canadian Appeals Monitor regrets the error.… Continue Reading

Saskatchewan Court of Appeal Rejects Ragoonanan Principle

Posted in Case Comments, Class Actions

In a recent decision with potentially far-reaching consequences – Red Seal – the Saskatchewan Court of Appeal has rejected the so-called “Ragoonanan” principle applicable to class actions. The Ragoonanan principle, which derives from an Ontario case of the same name, requires that for each defendant named in a putative class action, there must be at least one representative plaintiff with a cause of action against it.


The decision in Red Seal was released alongside two other judgments in the same putative class action: Alves and Roussy.  The action involved allegations that the defendant tour companies sold

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SCC to Reconsider the “Material Contribution” Test for Causation

Posted in Case Previews, Class Actions, Professions, Torts

The Supreme Court of Canada has granted leave in an appeal that may significantly limit liability in tort.  The case, Clements v. Clements, will require the Court to reconsider the “material contribution” test for causation, and in particular, whether it should be restricted to two narrow situations.

Decisions Below

In the judgment below, Clements (Litigation Guardian of) v. Clements, the British Columbia Court of Appeal found that the driver of a motorcycle was not liable to his passenger for injuries sustained as the result of an accident.  The driver was travelling at excessive speeds, and had overloaded the

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