Articles 2019

In Jeffrey v. London Life, the Ontario Court of Appeal held that when a class action results in a monetary award that benefits class members – even if they have no “right” to that award – class counsel’s contingency fee may charged against and paid from that award.

In Houle v St. Jude Medical Inc., the Ontario Divisional Court upheld a decision conditionally approving a litigation funding agreement in a products liability class action.

In its first decision of the year, the Ontario Court of Appeal held that arbitration clauses in Uber’s contracts with its drivers were void, and that a proposed class action against Uber could proceed.

In Broutzas v. Rouge Valley Health System, an Ontario court reaffirmed the tight and narrow parameters of the tort of intrusion on seclusion and the limitations on its use to justify a privacy class action.

Even in class actions, there comes a time when enough is enough and the civil justice system will no longer tolerate an inordinate and inexplicable delay. In Smith v Armstrong et al, 2018 ONSC 2435, R.S.J. Gordon granted the federal defendants’ motion to dismiss a proposed class action for delay and found the plaintiff’s delay to be inordinate where the litigation had not advanced to the certification stage after 17 years.

Multi-jurisdictional class actions in Canada continue to create problems for parties and the courts. Recently, the problems associated with multi-jurisdictional class actions resulted in the scuttling of a national class action settlement involving the prescription drugs OxyContin and OxyNeo. Despite three other courts approving the settlement in their respective jurisdictions, the Saskatchewan court in Perdikaris v Purdue Pharma Inc., refused to approve the same settlement.

In Amaya, the Quebec Court of Appeal reinforced the legislative purpose of the leave requirement in secondary market class actions, as being the protection of public issuers and their long-term shareholders, and not the plaintiff-shareholders., holding that "the purpose of the screening mechanism [is] to deter opportunistic or abusive litigation by plaintiff-shareholders who inappropriately wish to take advantage of the favourable conditions for secondary market actions against issuers."

“Like a forest fire in this era of climate change, costs in class proceedings have gotten out of control.” These were the opening words of Justice Perell in his recent costs decision following a successful defence motion to stay the class proceedings in Heller v Uber Technologies Inc, 2018 ONSC 1690.

Under the Employment Standards Act, there is no general prohibition against the arbitration of disputes arising under employment contracts. This has given rise to the question of whether proposed class actions under the ESA should be stayed in favour of arbitration where the agreement allegedly creating the employment relationship contains a clause requiring arbitration of disputes. This was precisely the issue that arose in the recent case of Heller v Uber Technologies, 2018 ONSC 718

In Houle v St. Jude Medical Inc., 2018 ONCA 88, the Ontario Court of Appeal has ruled that a decision of the Superior Court of Justice to approve a third party litigation funding agreement (“LFA”) on the condition that certain revisions be made to it (which the parties declined to accept) was an interlocutory decision for the purposes of an appeal.