Articles 2023

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.

Justice Perell’s recent decision in Batten v Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53 (“Batten”) appears to signal an increased willingness on the part of the courts to scrutinize in great detail, the evidentiary foundation of the merits of a proposed class action at the certification stage.

Justice Perell’s recent decision in Batten v Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53 (“Batten”) appears to signal an increased willingness on the part of the courts to scrutinize in great detail, the evidentiary foundation of the merits of a proposed class action at the certification stage.

The Court of Appeal in its recent decision Bancroft-Snell v Visa Canada Corporation, has determined that counsel, and not class members, should bear the costs involved in resolving carriage disputes.

The federal Court of Appeal's decision in John Doe v Her Majesty the Queen is an important reminder that, regardless of the novelty of the claim, parties need to properly plead the relevant material facts in support of a compensable privacy tort claim in order for it to be sustainable at the certification stage.

In Fantl v. Transamerica, the Ontario Court of Appeal has confirmed that claims for common law negligent misrepresentation are certifiable and can be the preferable procedure, particularly in the case where there is a single, written representation and no issue that it was received by the members of the class. The OCA's decision encourages class action trial judges to make use of the flexible procedures available under the CPA to streamline the resolution of any residual individual issues.

The Divisional Court will be determining whether the discoverability rule applies to the two year limitation period established by s. 36(4) Competition Act in this appeal from an order dismissing that defendants' motion for summary judgment.

The Ontario Court of Appeal upheld the decision of the trial judge setting out the criteria for, and awarding aggregate damages to class members damaged as a result of misrepresentations in a college course calendar that was found to be in breach of the Consumer Protection Act.

Three recent class action decisions in Ontario have considered when it is appropriate to extend the class—and consequently the jurisdiction of the Ontario court—to include persons who are not resident in Canada. The court in each of these decisions has focused on the question of where non-resident putative class members would reasonably expect their claims to be adjudicated.