Articles 2022

Plaintiffs generally have great flexibility in how they choose to frame their causes of action without court interference. If a plaintiff chooses to structure their litigation in an unconventional manner, they alone bear the risk of an unfavourable outcome. However, as recently confirmed by the Divisional Court in Pinon v Ottawa, in the context of a class action it is appropriate for the court to consider how pleadings are framed when deciding the preferable procedure criterion under the CPA.

Justice Belobaba released the first decision to interpret and apply s. 4.1 of the CPA in Dufault v TD Bank, making clear that defendants now have a presumptive right to have a potentially dispositive motion, or a motion that may narrow the issues or evidence in a proposed class proceeding, heard before certification.

Copyright owners have difficulty enforcing their rights against users of pirating software because the maximum recovery from each pirate is often too small to cover the copyright holder’s legal expenses. Meanwhile, there are often thousands, sometimes millions of acts of infringement. If the pirates had the cause of action, this might appear to be ideal for a class action. But can a class be the defendants? In Salna v Voltage Pictures, LLC, the Federal Court of Appeal appears to have said yes.

In Nasogaluak v. Canada and BigEagle v. Canada, the Federal Court reached differing outcomes on Certification, a puzzling result given the similarities between the two cases. How and why did the Court reach different decisions on two similar cases? The devil is in the details. While Plaintiffs' counsel may be tempted to frame class actions broadly to increase class size, the two decisions offer a reminder that less can sometimes be best, particularly where the claims involve novel elements.

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.

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."

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.

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.

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.

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.