Articles 2021

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?

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.

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.

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.

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.

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.

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.

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.

The OSC has finally decided the merits of a class action under the secondary market liability provisions of the Ontario Securities Act. Belobaba, J. began by noting that “leave to proceed will be granted if there is enough evidence to clear the ‘reasonable possibility’ hurdle,” but “when the matter is litigated in full and the plaintiff’s hurdle is the more demanding ‘balance of probabilities’, the defendants may prevail and the securities class action will be dismissed."

Historically, plaintiffs seeking damages for pure economic loss have faced multiple challenges from defendants, as well as skepticism from the Courts.  In two recent decisions, the Courts have emphasized that categories for claims for pure economic loss while not closed, are fact driven, and that a finding of proximity is key.  These cases could have important implications on the success of future class proceedings.