Articles 2023

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.

The OCA has determined that the Personal Health Information Protection Act (PHIPA) is not a “complete code” and therefore did not “oust” the plaintiff’s common law tort claim for breach of privacy (the tort of intrusion upon seclusion).

The Ontario Court of Appeal's important new judgment on secondary market misrepresentation claims in Bayens v. Kinross Gold Corp., 2014 ONCA 901 clarifies the interaction between the leave and certification tests, and reinforces the practical dependency of common law claims upon the statutory cause of action to be certified.