Articles 2019

Aujourdʼhui
Aujourdʼhui

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

  • 18 octobre 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.

Droit des recours collectifs, Student Forum

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

  • 06 octobre 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."

Droit des recours collectifs, Student Forum

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

  • 15 septembre 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.

Droit des recours collectifs, Student Forum

Azar v Strada Crush Limited: The Importance of a Suitable Indemnity Agreement for Adverse Costs for the Representative Plaintiff in a Class Action

  • 03 août 2021
  • Peter W. Kryworuk and Jacqueline M. Palef, Lerners LLP

In Azar v Strada Crush, Justice Morgan comments on a representative plaintiff’s potential exposure to adverse cost awards, and the importance of having an indemnity for costs in place for the representative plaintiff, whether that is addressed in the retainer agreement by class counsel agreeing to indemnify the representative plaintiff, or by securing a third party indemnity for costs from the Class Proceedings Fund or a third-party funding company.

Droit des recours collectifs, Student Forum

Del Giudice v. Thompson: Ontario Superior Court Provides Guidance On Pre-Certification Communications With Putative Class Members

  • 06 mai 2021
  • Jeremy Devereux and Ted Brook, Norton Rose Fulbright Canada LLP

In Del Giudice v Thompson, Perell J. provided valuable guidance to the class action bar regarding pre-certification communications with putative class members. This article reviews how the law in Ontario has developed and suggest that this decision—and in particular, Perell J.’s postface—offers a promising path forward.

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Use Your Discretion (At Your Own Risk): Could the Supreme Court’s Asselin Decision Resonate at Common Law?

  • 05 mai 2021
  • Robert Sniderman and Jeremy Martin, Cassels Brock & Blackwell LLP

With its recent decision in Desjardins Financial Services Firm Inc v Asselin, the Supreme Court of Canada highlighted and galvanized the suddenly stark jurisdictional differences between Canadian provinces, finding that, even as Ontario has taken legislative steps to raise the standard for class action certification, the existing law in Québec is to be interpreted on the loosest possible standard, short of authorizing frivolous claims.

Droit des recours collectifs, Student Forum

Employment Class Actions in Ontario: where are we now and where are we headed?

  • 05 mai 2021
  • Joshua Mandryk and Jody Brown, Goldblatt Partners LLP

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?

Droit des recours collectifs, Student Forum

Francis v. Ontario – Court of Appeal Frees the Confines of Systemic Negligence

  • 19 avril 2021
  • Nathalie Gondek, Koskie Minsky LLP

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.

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Price v. Smith & Wesson Corp. - Donoghue v. Stephenson and the snail that keeps rearing its (beautiful) head

  • 31 mars 2021
  • Annie Legate-Wolfe, Foreman & Company

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.

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Privacy Class Actions in Canada: the misconceptions, the pitfalls and the path forward

  • 26 mars 2021
  • Sage Nematollahi, KND Complex Litigation

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.

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