Articles 2023

This article summarizes Bowman v Ontario, 2022 ONCA 477, which provides guidance to lower courts and practitioners on conducting a correct analysis under the cause of action (s. 5(1)(a)) criterion of the Class Proceedings Act.

This article summarizes Le Feuvre v Enterprise Rent-A-Car Canada Company, 2022 ONSC 4136, in which the Ontario Superior Court of Justice dismissed the plaintiff’s motion for certification of a proposed employment misclassification class action due to a lack of a factual basis for a common claim. The court also commented on the need for a viable methodology for certifying an aggregate damages claim.

This article summarizes N&C Transportation Ltd. v. Navistar International Corporation, 2022 BCCA 164, in which the British Columbia Court of Appeal set out the factors applicable when weighing the benefits of a multi‑jurisdictional class proceeding against competing extra-provincial actions, including where a proposed settlement has been reached.

This article summarizes the Court of Appeal’s decision in Wong v Pretium Resources Inc., 2022 ONCA 549, which confirms that the reliability of information can be relevant to determining the materiality of information under Ontario's Securities Act.

This article summarizes a recent certification motion emphasizing that the scope of a fiduciary duty is not always the same. When alleging a breach of fiduciary duty, class counsel should carefully consider the nature of that relationship.

In Lubas v Wayland Group, Justice Morgan’s interpretation of s. 29.1 of the CPA represents a liberal and flexible interpretation of that provision. While Justice Morgan recognized the trend in the caselaw towards dismissing for delay when the criteria were not strictly met, he expressly noted that he was prepared to be an outlier that took a more liberal approach that would not automatically see cases dismissed for delay.

A trilogy of new cases – or rather, two new cases and one comment in obiter – interpret Section 4.1 of the amended CPA, and address whether or not a defendant has a presumptive right to bring a motion to dismiss or narrow the case prior to certification. They also, perhaps unintentionally, interface with another recent decision interpreting those amendments that has left some observers asking if the interpretation of Section 4.1 even matters.

In Chow v Facebook, the BC Supreme Court joins several other courts in declining to certify class actions based on a lack of "compensable" harm. The Court held that deployment of judicial resources where there was no evidence of compensable harm "would be the antitheses of judicial economy and would not provide meaningful access to justice."

In a motion to pursue a class action against the Ontario Provincial Police brought by Caledonia residents arising from Caledonia’s road and rail blockade by protestors in 2020, the Superior Court invalidated the mandatory stay arising from section 17 of the CLPA due to its inconsistency with section 96 of the Constitution Act.

In Greenwood, the Federal Court of Appeal certified a claim in systemic negligence. While this may be surprising to some given existing jurisprudence suggesting that negligence for workplace harassment claims are not viable causes of action, in this case certification of this cause of action rested on a very narrow exception – that the claims belonged to individuals who experienced workplace harassment, but who did not have written or unwritten contracts of employment.