Articles 2019

Today
Today

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

Reverse Class Actions: A New Frontier in Copyright Enforcement?

  • October 22, 2021
  • Adil Abdulla, Sotos LLP

Copyright owners have difficulty enforcing their rights against users of pirating software because the maximum recovery from each pirate is often too small to cover the copyright holder’s legal expenses. Meanwhile, there are often thousands, sometimes millions of acts of infringement. If the pirates had the cause of action, this might appear to be ideal for a class action. But can a class be the defendants? In Salna v Voltage Pictures, LLC, the Federal Court of Appeal appears to have said yes.

Class Actions, Student Forum

Nasogaluak and BigEagle : An Examination of Class Action Case Design

  • October 22, 2021
  • Sue Tan, Koskie Minsky LLP

In Nasogaluak v. Canada and BigEagle v. Canada, the Federal Court reached differing outcomes on Certification, a puzzling result given the similarities between the two cases. How and why did the Court reach different decisions on two similar cases? The devil is in the details. While Plaintiffs' counsel may be tempted to frame class actions broadly to increase class size, the two decisions offer a reminder that less can sometimes be best, particularly where the claims involve novel elements.

Class Actions, Student Forum

Saskatchewan Court Denies Certification and Strikes Claim where Representative Plaintiff and Lawyer Sought to Profit from Class Members they Sought to Represent

  • October 18, 2021
  • Michael Tersigni, Keel Cottrelle LLP

In a recent decision of the Saskatchewan QB, the Court refused to certify an action and struck the claim in its entirety. The Court took issue with the behaviour of Plaintiffs’ counsel, including his acceptance of fees solicited from putative class members without court approval, noting that the fee arrangement between the proposed representative plaintiffs’ and Plaintiff's counsel created an “obvious and untenable” conflict giving rise to divided loyalties, thereby rendering counsel unsuitable.

Class Actions, Student Forum

Court of Appeal Addresses Novel Question of Appellate Jurisdiction in Class Proceedings

  • October 06, 2021
  • W. David Rankin, Osler

In Johnson v. Ontario, the Court of Appeal addressed a novel question of appellate jurisdiction: is an order refusing to extend the time to opt out of a class action final or interlocutory? The Court of Appeal concluded that the order was final, noting that although the Class Proceedings Act is procedural, the opt-out right is “fundamental to the court’s jurisdiction over unnamed class members."

Class Actions, Student Forum

Weaponized Access to Justice: Staying Individual Actions Pending Certification of a Class Action

  • September 15, 2021
  • Jasminka Kalajdzic, associate professor | clinic director, Windsor Law | Class Action Clinic

In a recent decision from Saskatchewan, the Court was asked by the representative plaintiffs in a proposed class action arising from the Humboldt Broncos bus crash to stay an individual action brought by family members of those killed in the tragedy. The Court granted the stay pending the April 2022 Certification hearing, effectively turning access to justice on its head. By depriving individual plaintiffs of control over their litigation, access to justice is both delayed and denied.

Class Actions, Student Forum