Articles 2019

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.

Since the introduction of ride sharing technology such as Uber, a legal dust-up with traditional taxi drivers and brokers seemed inevitable. Perhaps less predictable was the form that dispute would take. In Metro Taxi Ltd. v. City of Ottawa, the Court considered a certification motion for a class action brought by taxi license plate holders and brokers against the City of Ottawa for their regulatory handling of the introduction of Uber, claiming both negligence and discrimination.

Justice Morgan’s recent decision in David v Loblaw, 2018 ONSC 198 demonstrates that, absent misrepresentation, misinformation or oppressive conduct, the Courts are reluctant to intervene in pre-certification agreements between defendants and putative class members wherein the defendant limits its potential exposure by offering compensation in exchange for a limited release of liability.

The Ontario Court of Appeal recently released a decision in Airia Brands Inc. v. Air Canada (“Airia Brands”), clarifying the applicable test for determining jurisdiction over absent foreign claimants (“AFCs”) in a class proceeding. The decision provides important guidance on when non-residents will be included in a class.

Justice Perell in the recent decision of Houle v St. Jude Medical Inc., 2017 ONSC 5129 has endorsed with some revisions, the use of a creative third party litigation funding agreement, which included a partial contingency fee retainer together with a fee-for-services retainer for Class Counsel, as a way to further the goals of the class action regime.

While competition law specialists are familiar with the ongoing debate about umbrella purchaser claims, most Canadian lawyers could be forgiven for wondering what all the umbrella fuss is about. Far from being individuals who rejected raincoats or ponchos in favour of a more traditional option, umbrella purchasers are now at the center of a heated debate in Canadian competition law.