Articles 2022

On February 9, 2022, the Court of Appeal for Ontario released its highly anticipated decision in Fresco v. CIBC in a long-running class action regarding the payment of overtime to class members. While Fresco is an important appellate decision, it also raises a number of important questions, including about the extent to which proposed common issues can be introduced (or re-introduced) when the merits of the already-certified common issues are being determined at a common issues trial.

In Bourque v. Insight Productions Ltd. et al (“Bourque”) , the Ontario Superior Court of Justice had its first occasion to dismiss an action for delay pursuant to the new s. 29.1. Although he dismissed the action, Justice Belobaba said it could be refiled against the same defendants but with a different proposed representative plaintiff. The basis for this determination and whether it represents obiter comments is unclear.

In Baroch v Canada, Justice Belobaba noted that it was “self-evident… that third-party funding should be a relevant factor in the ‘risks incurred’ analysis” but that “it may be unfair to impose this new risk metric retroactively on a class action that was undoubtedly commenced under a very different expectation.

Efficiency and cost effectiveness are key considerations under the new carriage test in s. 13.1 of the Class Proceedings Act, according to a recent decision of Justice Perell in Bonnick v. Simply Group. Justice Perell’s decision makes it clear that the new provision is a significant departure from the common law test on carriage, and emphasizes factors of efficiency, proportionality and the cost-effectiveness of the proceeding as key determinants for carriage going forward.

In Owsianik v. Equifax, the Divisional Court held that organizations that collect and store private information cannot be liable for the tort of intrusion upon seclusion when third parties steal or access that information. While it will not be the final word on the subject, this decision significantly curtails the scope of privacy breach class actions in Ontario that arise out of third-party hacking and cyberattacks.

In Kirsh, the Divisional Court recently considered the principles applicable to the analysis of preferability and abuse of process in the context of parallel national class actions. It confirmed what the class actions bar has known for a long time: there is no panacea for the phenomenon of parallel and duplicative national class actions commenced in different Canadian jurisdictions, particularly when the overlapping proceedings are commenced by different plaintiffs and different class counsel.

The UK Supreme Court just released its long-awaited judgment in Lloyd v Google, deciding whether England’s representative action rule can be used for the purposes of a class action. The UK Supreme Court’s interpretation of the representative rule is more revolutionary than appearances would suggest.

The recent decision of Justice Morgan in Levac v. James, 2021 ONSC 5971 confirms that common elements of causation can be resolved in a class proceeding, even while the ultimate proof of causation remains an individual issue. The decision is also noteworthy for the proposition that causal inferences can be established on the basis of circumstantial evidence supported by statistical and epidemiologic inference alone.

The Ragoonanan rule has been a fixture of Ontario class action law for approximately 20 years, yet it remains controversial. Does the Supreme Court of Canada's decision in Marcotte mean that the Ragoonanan rule is no longer good law in Ontario? That is an issue that had been afforded judicial notice, but never addressed head-on until the recent decision of Justice Perell in Aphria.

The recent trend of increasing resistance to honorarium awards is unfortunate because it may result in another barrier in terms of promoting access to justice. While there is no guarantee of honorarium awards in the current regime, making honorariums more rare may mean that potential plaintiffs will be less willing to assume the role of representative plaintiff if they will not be compensated for their time and effort and could have an impact on future class-action litigation.