Articles 2019


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

Lloyd v Google: UK Supreme Court holds that England’s representative rule can be used to craft a class action

  • November 24, 2021
  • Suzanne Chiodo, assistant professor, Western Law,

The UK Supreme Court just released its long-awaited judgment in Lloyd v Google, deciding whether England’s representative action rule can be used for the purposes of a class action. The UK Supreme Court’s interpretation of the representative rule is more revolutionary than appearances would suggest.

Class Actions, Student Forum

Levac v. James et al.: A Novel Causation Argument Meets with Success

  • November 14, 2021
  • Paul Harte, Harte Law Professional Corporation

The recent decision of Justice Morgan in Levac v. James, 2021 ONSC 5971 confirms that common elements of causation can be resolved in a class proceeding, even while the ultimate proof of causation remains an individual issue. The decision is also noteworthy for the proposition that causal inferences can be established on the basis of circumstantial evidence supported by statistical and epidemiologic inference alone.

Class Actions, Student Forum

The Aphria Decision: The Ragoonanan Rule Lives on in Ontario

  • October 30, 2021
  • Anthony O'Brien, Siskinds LLP

The Ragoonanan rule has been a fixture of Ontario class action law for approximately 20 years, yet it remains controversial. Does the Supreme Court of Canada's decision in Marcotte mean that the Ragoonanan rule is no longer good law in Ontario? That is an issue that had been afforded judicial notice, but never addressed head-on until the recent decision of Justice Perell in Aphria.

Class Actions, Student Forum

Fair Compensation or Unjustified Temptation to Compromise?: An Empirical Review of Requests for Honorarium Awards in Canadian Class Actions

  • October 27, 2021
  • Marie Ong, articling student at Alexander Holburn Beaudin + Lang LLP, 2021 Winner of Harvey T Strosberg Essay Competition

The recent trend of increasing resistance to honorarium awards is unfortunate because it may result in another barrier in terms of promoting access to justice. While there is no guarantee of honorarium awards in the current regime, making honorariums more rare may mean that potential plaintiffs will be less willing to assume the role of representative plaintiff if they will not be compensated for their time and effort and could have an impact on future class-action litigation.

Class Actions, Student Forum

Pinon v Ottawa (City) – Strategically framed pleadings and preferable procedure

  • October 23, 2021
  • Jonathan Bradford, McKenzie Lake Lawyers

Plaintiffs generally have great flexibility in how they choose to frame their causes of action without court interference. If a plaintiff chooses to structure their litigation in an unconventional manner, they alone bear the risk of an unfavourable outcome. However, as recently confirmed by the Divisional Court in Pinon v Ottawa, in the context of a class action it is appropriate for the court to consider how pleadings are framed when deciding the preferable procedure criterion under the CPA.

Class Actions, Student Forum

First Decision to Interpret and Apply s. 4.1 of the new CPA - Court in Dufault v. TD Confirms Sequencing Pre-Certification Motions is Now a Presumptive Right

  • October 23, 2021
  • Christine Lonsdale, Adam Ship, Adriana Forest, McCarthy Tetrault

Justice Belobaba released the first decision to interpret and apply s. 4.1 of the CPA in Dufault v TD Bank, making clear that defendants now have a presumptive right to have a potentially dispositive motion, or a motion that may narrow the issues or evidence in a proposed class proceeding, heard before certification.

Class Actions, Student Forum