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Class Actions - On the Docket
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Canada’s federal structure means national class actions naturally raise potential constitutional questions. Those questions become potentially more thorny where a class action is pursued not on behalf of individuals across multiple provinces and territories, but instead provincial and territorial governments themselves. The Supreme Court’s recent decision in Sanis Health Inc v British Columbia addressed many of those concerns and ultimately defined a broad scope for national class proceedings, including where a proposed class includes other provincial or territorial governments.
The multifaceted nature of generative AI is bound to create legal complexities at the intersection of intellectual property law and class actions, as this emerging technology disrupts not only the tech landscape but the legal one too.
By playing their essential gatekeeping role, class action judges have in numerous decisions clarified the necessary elements of various causes of action and the availability of specific remedies in a particular case. What constitutes harm that is compensable, for example, has featured in numerous product liability class actions and the failure to show harm has put an end to many of them. For strategic and practical reasons, some class actions do not seek compensation for losses that the class members suffered. Instead, the strategy is to pursue remedies that do not correspond with personal losses such as disgorgement, nominal damages and punitive damages. Hoy v Expedia Group Inc is a recent example.
In 2020, following a series of recommendations released by the Law Commission of Ontario, the Ontario legislature passed substantial amendments to the Class Proceedings Act. Many of those amendments were drawn straight from the Law Commission’s report and were generally supported by most stakeholders.
Lynne McArdle published the first issue of On the Docket: Cases to Watch, which features a collection of cases that move the law forward in some meaningful way. The cases in this edition are diverse in that they arise in different areas of the law: fraudulent conveyances, securities law, class actions, employment law, discovery, and Crown law.
Pleadings continue to be a popular battleground in the product liability context. Over the years, a body of law has developed respecting motions to strike for negligent design, negligent manufacture and failure to warn claims. Nevertheless, there continues to be debate as to the specificity needed for pleading these types of claims. That debate is fuelled in part by jurisprudence demonstrating a high tolerance for claims that are arguably vague and lacking in material facts. Even where a claim is struck, plaintiffs are routinely permitted to amend their pleading.
Commercial disputes between professionals and their clients are routine. However, what is comparatively rare are disputes between the consultants (or other professionals) who advise a client and the client’s customers who may be harmed in some way by that client’s conduct. In those circumstances, there is generally no contractual relationship between the consultant and the client’s customer, and most cases have held that there is no duty of care between a professional and a person injured by the professionals’ client’s conduct. Lawyers, for example, have been held to potentially owe duties of care to non-clients in only the most exceptional circumstances. However, the recent decision of the British Columbia Supreme Court in British Columbia v McKinsey has the potential to substantially expand the scope of claims brought against professionals by persons allegedly harmed by those professionals’ clients’ conduct.
The philosopher Heraclitus observed that “the only constant in life is change”, a maxim as true for the business world as the natural world. Publicly traded companies operate in a dynamic environment, where commodity prices swing, new laws are passed, and scientific breakthroughs are made. So long as those companies wish to maintain their access to public markets, they must carefully consider how day-to-day happenings (and their own reactions to those events) affect their continuous disclosure obligations. These disclosure judgements are fact-specific and often fast-paced, yet they carry potentially significant consequences.
Last Friday, the Ontario Court of Appeal released decisions in Owsianik v Equifax Canada Co, Obodo v Trans Union of Canada, Inc, and Winder v Marriott International, Inc—a trilogy of decisions clarifying whether the tort of intrusion upon seclusion applies to the owners of databases when there are data breaches caused by third party hackers. Thankfully for database owners, the Court of Appeal concluded that intrusion upon seclusion cannot apply in those circumstances.
Class actions are strange creatures, even to other lawyers.
