Articles

About Articles The below articles are published by the Class Actions Law Section of the Ontario Bar Association. Members are encouraged to submit articles. About Articles

Editors: Tina Yang and Mirilyn Sharp

Today
Today

Del Giudice v. Thompson: Ontario Superior Court Provides Guidance On Pre-Certification Communications With Putative Class Members

  • May 06, 2021
  • Jeremy Devereux and Ted Brook, Norton Rose Fulbright Canada LLP

In Del Giudice v Thompson, Perell J. provided valuable guidance to the class action bar regarding pre-certification communications with putative class members. This article reviews how the law in Ontario has developed and suggest that this decision—and in particular, Perell J.’s postface—offers a promising path forward.

Class Actions, Student Forum

Use Your Discretion (At Your Own Risk): Could the Supreme Court’s Asselin Decision Resonate at Common Law?

  • May 05, 2021
  • Robert Sniderman and Jeremy Martin, Cassels Brock & Blackwell LLP

With its recent decision in Desjardins Financial Services Firm Inc v Asselin, the Supreme Court of Canada highlighted and galvanized the suddenly stark jurisdictional differences between Canadian provinces, finding that, even as Ontario has taken legislative steps to raise the standard for class action certification, the existing law in Québec is to be interpreted on the loosest possible standard, short of authorizing frivolous claims.

Class Actions, Student Forum

Employment Class Actions in Ontario: where are we now and where are we headed?

  • May 05, 2021
  • Joshua Mandryk and Jody Brown, Goldblatt Partners LLP

It has been nearly nine years since the Ontario Court of Appeal’s unpaid overtime class action certification trilogy was released, settling the law regarding certification of unpaid overtime and employment misclassification class actions. With the benefit of the intervening years, what can be said now about the state of employment class actions in Ontario?

Class Actions, Student Forum

Francis v. Ontario – Court of Appeal Frees the Confines of Systemic Negligence

  • April 19, 2021
  • Nathalie Gondek, Koskie Minsky LLP

The Ontario Court of Appeal recently ruled that systemic negligence claims against governments are indeed a tenable avenue for class-wide recovery. While the decision in Francis v. Ontario is the third time in two years that the Ontario Court of Appeal ruled solitary confinement is unconstitutional, it was the first time a Canadian appellate court made an aggregate damages award for systemic negligence in the context of a judgment.

Class Actions, Student Forum

Price v. Smith & Wesson Corp. - Donoghue v. Stephenson and the snail that keeps rearing its (beautiful) head

  • March 31, 2021
  • Annie Legate-Wolfe, Foreman & Company

In Price v. Smith & Wesson Corp., 2021 ONSC 1114, the Court provides an important reminder of the ongoing importance of historical case law to solve modern negligence problems. Despite the evolution of tort law since its early days, the starting point of Donoghue v. Stephenson remains relevant even outside the confines of the classroom, particularly with regard to ejusdem generis, or dangerous goods per se.

Class Actions, Student Forum

Privacy Class Actions in Canada: the misconceptions, the pitfalls and the path forward

  • March 26, 2021
  • Sage Nematollahi, KND Complex Litigation

Courts in Ontario and Alberta have recently issued several significant decisions in privacy class actions. These two decisions followed the prevailing trend of the dismissal of privacy class actions in Canada, in which courts have generally found that there is no evidence of harm, or that the information at issue did not rise to a level that would support the finding of a reasonable expectation of privacy, or both.

Class Actions, Privacy Law, Student Forum

Post-Judgment Individual Issues Decisions Offer Guidance for Predominance Analysis at Certification

  • March 26, 2021
  • Jody Brown and Joshua Mandryk, Goldblatt Partners LLP

The new legislative requirement that common issues “predominate” over individual issues in order to certify a class action will serve to intensify attention on potential individual issues at certification. Although Ontario has little judicial authority on individual issues litigation, the authority to date shows that individual issues litigation can be structured to ensure that individual questions will be determined in accessible and effective ways, even in large, complex proceedings.

Class Actions, Student Forum

Raising Limitations Issues Before the Close of Pleadings: Further Guidance from the Court of Appeal

  • March 26, 2021
  • Megan Percy, Davies Ward Phillips & Vineberg LLP

A recent unanimous decision of the Ontario Court of Appeal in Kaynes v. BP p.l.c. provides welcome guidance to the class actions bar, as it confirms the circumstances in which an early-stage Rule 21 motion to challenge a statute-barred claim may be appropriate, and clarifies when a claim for fraudulent misrepresentation is discoverable under the Limitations Act.

Class Actions, Student Forum

Objection, Your Honour! Can class members dispute settlement orders in class actions?

  • March 04, 2021
  • Daniel MacDonald, student caseworker – Class Action Clinic | Windsor Law

A feature unique to class actions is that class members are not always happy with settlements. Occasionally, class members object to settlements but judges approve them anyway. Is there recourse for class members when this situation arises? Alberta Court of Appeal ruled in Macaronies Hair Club and Laser Center Inc. v Bank of Montreal that unhappy class members have no right to appeal a settlement order and have no other recourse.

Class Actions, Student Forum

The Power To Be Bold: A New Chapter for Novel Claims in Class Proceedings

  • March 04, 2021
  • Craig Lockwood and Stephen Armstrong, Osler, Hoskin & Harcourt LLP

Novel claims present a significant challenge for courts in the context of interlocutory proceedings such as motions to strike or amend pleadings, or to certify class proceedings. In Atlantic Lottery Corp. Inc. v. Babstock, the Supreme Court of Canada provided welcome guidance on how courts should approach motions to strike pleadings of novel causes of action. Notably, the Court held that a plaintiff’s claim will not survive a motion to strike simply because it is novel.

Class Actions, Student Forum