Articles 2022

In Fantl v. Transamerica, the Ontario Court of Appeal has confirmed that claims for common law negligent misrepresentation are certifiable and can be the preferable procedure, particularly in the case where there is a single, written representation and no issue that it was received by the members of the class. The OCA's decision encourages class action trial judges to make use of the flexible procedures available under the CPA to streamline the resolution of any residual individual issues.

The Divisional Court will be determining whether the discoverability rule applies to the two year limitation period established by s. 36(4) Competition Act in this appeal from an order dismissing that defendants' motion for summary judgment.

The Ontario Court of Appeal upheld the decision of the trial judge setting out the criteria for, and awarding aggregate damages to class members damaged as a result of misrepresentations in a college course calendar that was found to be in breach of the Consumer Protection Act.

Three recent class action decisions in Ontario have considered when it is appropriate to extend the class—and consequently the jurisdiction of the Ontario court—to include persons who are not resident in Canada. The court in each of these decisions has focused on the question of where non-resident putative class members would reasonably expect their claims to be adjudicated.

The novel breach of privacy causes of action, intrusion upon seclusion, and publicity given to private life have been found to be certifiable as class proceedings by the Federal Court of Canada.

BCCA finds that forum selection clause in Facebook user agreement trumps exclusive jurisdiction term in BC Privacy Act.

Certification denied when multiple medical products treating multiple symptoms with multiple complaints not suitable for certification. Leave to focus on one device granted.

Applying the AIC decision, access to justice remains a key factor for the court deciding certification.

The Court of Appeal has reaffirmed the ability of class counsel to recast its failed certification arguments on appeal, so long as the "conceptual core" of the case remains consistent.

The BCCA has confirmed that if causation is to be certified as a common issue, the plaintiff must adduce evidence that there is a plausible and credible methodology for establishing causation on a class-wide basis.