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Using rules of thumb to generate estimates can be very useful in a variety of circumstances: for example, when the detailed information necessary to generate a precise answer is unavailable, or when it’s too difficult to analyze that detailed information.  Lawyers use such rules of thumb in a number of circumstances, sometimes as an initial rough estimate, and sometimes to confirm the results of more detailed analysis.

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The proliferation of parallel class proceedings in multiple Canadian provinces often defeats the very purpose of class proceedings: the avoidance of a multiplicity of actions. In order to streamline procedures, ensure consistent results, and encourage judicial economy, judges in several provinces have started demanding greater co-ordination among both class counsel and the courts. In  McKay v Air Canada, Chief Justice Hinkson took this trend even farther in approving a settlement distribution plan by simply reproducing the reasons of the Ontario Court in Airia Brands v Air Canada

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Over the 25 years that Ontario’s Class Proceedings Act has been in force, there have been fewer than 20 common issue trials. While class actions have the potential to remove access to justice barriers and improve judicial economy and efficiency, in Ontario their scope has been limited.  

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Barrick Gold Corporation’s disclosure, on April 10, 2013, that a Chilean court had issued an interlocutory order suspending the construction of its Pascua-Lama mine led to a substantial drop in its share price. This was further exacerbated the following month, when Chilean environmental regulators found serious environmental violations and shut down the project. Both Rochon Genova LLP (“Rochon”) and Koskie Minsky LLP (“Koskie”) initiated class proceedings against Barrick Gold Corporation (“Barrick”) on behalf of disgruntled shareholders, with billions of dollars of damages claimed.

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Costs awards are a key element to the litigation process, rewarding successful parties and dissuading underserving would-be litigants.  The goals of costs awards are relatively static in Ontario and should reflect the fair and reasonable expectations of the unsuccessful party, and be consistent with comparable cases.  In class proceedings, the goal of access to justice is an additional criterion.

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Any action described by the Judge as "novelty on steroids" provides an opportunity for the Court to balance the opportunity to develop new law, with the importance of rigorously applying existing law.  This duality arose in a motion in the class action Fisher v IG Investment Management Ltd (2015 ONSC 3525), recently decided by the Ontario Superior Court.

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The Ontario Divisional Court has recently affirmed the importance of access to justice as a factor in determining whether to certify a proposed class action.

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The Sino-Forest class action has been certified, and leave was granted to bring a claim under the Securities Act for secondary market misrepresentations.

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Defendants in consumer class actions should be on notice, following two recent decisions that used consumer protection legislation as a basis to award damages.

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Canadian Courts have been faced in recent years with a number of class actions in which employees allege that their employer improperly misclassified them as ineligible for overtime pay.  The Ontario Court of Appeal's recent decision in Brown v. Canadian Imperial Bank of Commerce makes it more difficult for such claims to proceed as class actions.