Articles 2019


No Compensable Harm, No Class Action

  • April 07, 2022
  • Ethan Schiff, Bennett Jones LLP

In Chow v Facebook, the BC Supreme Court joins several other courts in declining to certify class actions based on a lack of "compensable" harm. The Court held that deployment of judicial resources where there was no evidence of compensable harm "would be the antitheses of judicial economy and would not provide meaningful access to justice."

Class Actions, Student Forum

Section 17 of the Crown Liability and Proceedings Act, 2019 Declared Unconstitutional

  • March 16, 2022
  • Katrina Crocker, Norton Rose Fulbright Canada LLP / S.E.N.C.R.L., s.r.l.

In a motion to pursue a class action against the Ontario Provincial Police brought by Caledonia residents arising from Caledonia’s road and rail blockade by protestors in 2020, the Superior Court invalidated the mandatory stay arising from section 17 of the CLPA due to its inconsistency with section 96 of the Constitution Act.

Class Actions, Student Forum

Greenwood v. Canada: A Pathway to Negligence for Workplace Harassment?

  • March 16, 2022
  • Sue Tan, Koskie Minsky

In Greenwood, the Federal Court of Appeal certified a claim in systemic negligence. While this may be surprising to some given existing jurisprudence suggesting that negligence for workplace harassment claims are not viable causes of action, in this case certification of this cause of action rested on a very narrow exception – that the claims belonged to individuals who experienced workplace harassment, but who did not have written or unwritten contracts of employment.

Class Actions, Student Forum

Doucet v The Royal Winnipeg Ballet: Closing the Curtain on Honouraria for Representative Plaintiffs and Class Member Witnesses?

  • March 10, 2022
  • Chelsea Smith, McKenzie Lake Lawyers LLP

The trend of rising judicial skepticism towards class action honouraria recently culminated in Doucet v The Royal Winnipeg Ballet, a February 11, 2022 decision of Perell J concluding that the practice of granting honouraria is wrong and should be stopped altogether as a matter of legal principle. This article examines the impact or possible impact of Doucet on the practice of granting honouraria in Ontario.

Class Actions, Student Forum

Fresco v. CIBC: Ontario Court of Appeal Decision Offers Guidance, Leaves Open Questions

  • March 03, 2022
  • Ian Matthews and Adrian Pel, Borden Ladner Gervais LLP

On February 9, 2022, the Court of Appeal for Ontario released its highly anticipated decision in Fresco v. CIBC in a long-running class action regarding the payment of overtime to class members. While Fresco is an important appellate decision, it also raises a number of important questions, including about the extent to which proposed common issues can be introduced (or re-introduced) when the merits of the already-certified common issues are being determined at a common issues trial.

Class Actions, Student Forum

Bourque v. Insight: First Class Proceeding to be dismissed for delay under the new s. 29.1 of the amended Class Proceedings Act

  • February 15, 2022
  • Jessica Lam and Alysha Li, Blakes

In Bourque v. Insight Productions Ltd. et al (“Bourque”) , the Ontario Superior Court of Justice had its first occasion to dismiss an action for delay pursuant to the new s. 29.1. Although he dismissed the action, Justice Belobaba said it could be refiled against the same defendants but with a different proposed representative plaintiff. The basis for this determination and whether it represents obiter comments is unclear.

Class Actions, Student Forum

Baroch v. Canada Cartage: The Impact of Litigation Funding Agreements on the Reasonableness of Class Counsel’s Fees

  • February 14, 2022
  • Michael A. Currie and Fabian Suárez-Amaya, Lax O'Sullivan Lisus Gottlieb

In Baroch v Canada, Justice Belobaba noted that it was “self-evident… that third-party funding should be a relevant factor in the ‘risks incurred’ analysis” but that “it may be unfair to impose this new risk metric retroactively on a class action that was undoubtedly commenced under a very different expectation.

Class Actions, Student Forum

Carriage Test Under New s. 13.1 of CPA - Ontario Court Highlights Efficiency in Weighing Competing Class Actions

  • February 06, 2022
  • Michelle Logasov, Sotos LLP

Efficiency and cost effectiveness are key considerations under the new carriage test in s. 13.1 of the Class Proceedings Act, according to a recent decision of Justice Perell in Bonnick v. Simply Group. Justice Perell’s decision makes it clear that the new provision is a significant departure from the common law test on carriage, and emphasizes factors of efficiency, proportionality and the cost-effectiveness of the proceeding as key determinants for carriage going forward.

Class Actions, Student Forum

Owsianik v. Equifax: Divisional Court Curtails Scope of Privacy Breach Class Actions in Ontario

  • December 14, 2021
  • Megan Percy, Davies Ward Phillips & Vineberg LLP

In Owsianik v. Equifax, the Divisional Court held that organizations that collect and store private information cannot be liable for the tort of intrusion upon seclusion when third parties steal or access that information. While it will not be the final word on the subject, this decision significantly curtails the scope of privacy breach class actions in Ontario that arise out of third-party hacking and cyberattacks.

Class Actions, Student Forum

Kirsh: No Panacea for Parallel National Class Actions

  • November 25, 2021
  • Golnaz Nayerahmadi, Rochon Genova LLP

In Kirsh, the Divisional Court recently considered the principles applicable to the analysis of preferability and abuse of process in the context of parallel national class actions. It confirmed what the class actions bar has known for a long time: there is no panacea for the phenomenon of parallel and duplicative national class actions commenced in different Canadian jurisdictions, particularly when the overlapping proceedings are commenced by different plaintiffs and different class counsel.

Class Actions, Student Forum