A New Test for the Validity of Subordinate Legislation: Auern’t You Glad the Supreme Court Weighed In?
When we think about the broad direction of government policy, we generally think about the statutes introduced by the legislature. However, the reality is that much of the laws that impact us are subordinate legislation: regulations, rules, and policies that are enacted by Ministers, boards and agencies, or other government actors pursuant to rule-making power provided to them under legislation. For nearly a decade, challenges to subordinate legislation were extremely challenging. The Supreme Court of Canada’s 2013 decision in Katz Group Canada Inc v Ontario (Health and Long‑Term Care) set a high bar for challenging such subordinate legislation. The Court in that case held subordinate legislation “must be ‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutory purpose.”
Jordana Sanft & Paul-Erik Veel | November 11, 2024
On the Horizon: Legal Complexities Intersecting Generative AI, Class Actions, and IP Law
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.
Jordana Sanft & Paul-Erik Veel | May 6, 2024
Is the Bar for Class Action Certification Now Higher in Ontario? Two Judges Say “Yes, but Probably Not Much”
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.
Paul-Erik Veel | January 19, 2024
Getting Leave to the Supreme Court of Canada: 2023 by the Numbers
Our readers know that we maintain a database that includes information relating to every Supreme Court of Canada leave decision from January 1, 2018 onward. While we use that database to maintain a machine learning model to predict the likelihood of particular cases getting leave to appeal, we also use it to look at trends at the Court more generally. In this blog post, we provide a year in review of the Supreme Court of Canada’s leave application decisions in 2023.
Paul-Erik Veel | January 15, 2024
Class Actions for Reviewable Conduct Under the Competition Act? No, Not Really, but Sort Of
Recent years have seen a wave of reforms to the Competition Act being discussed and implemented. That wave has become a veritable tsunami with omnibus legislation introduced in Parliament in November 2023. That legislation proposes a number of fundamental changes to the Competition Act, which have the potential to dramatically impact Canadian businesses. While a detailed discussion of all of the amendments is beyond the scope of this blog post, perhaps the most interesting thing to litigators and businesses concerned about litigation risk, is the creation of what may prove to be a kind of pseudo-class action regime before the Competition Tribunal that ultimately allows consumers to recover losses as a result of certain types of reviewable conduct.
Paul-Erik Veel | December 8, 2023
Consultants’ Liability for Bad Advice: Just to Their Clients, or Does It Go Further?
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.
Paul-Erik Veel | October 20, 2023
In a Class of their Own? Applications for Leave to Appeal to the Supreme Court of Canada in Class Actions
This blog post deals with two areas of law that are near and dear to my heart: class actions and appeals to the Supreme Court of Canada. The question I tackle in this post is whether class actions are more likely than other types of cases to be granted leave to appeal to the Supreme Court of Canada.
Paul-Erik Veel | July 20, 2023
Challenges in Spotting Material Changes
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.
Paul-Erik Veel & Christopher Yung | May 29, 2023
Fewer Cases Are Getting Leave to Appeal to the Supreme Court of Canada. Why?
As many readers of our blogs know, we maintain a database that contains a wealth of information about every Supreme Court of Canada leave application decided from January 1, 2018 onward. That dataset allows us to provide a range of analysis and predictions relating to Supreme Court leave applications. But there is one fact that is apparent to all Supreme Court watchers that you don’t need a rich dataset to know: far fewer cases than usual got leave to appeal to the Supreme Court in 2022. The question this blog post tries to answer is: why?
Paul-Erik Veel | January 20, 2023
Intrusion Upon Seclusion Without Being the Intruder? The Ontario Court of Appeal Limits Claims Against Database Holders
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.
Paul-Erik Veel & Brianne Westland | November 28, 2022
The Ontario Court of Appeal Provides Clarity on Late Opt Outs from Class Proceedings
Class actions are strange creatures, even to other lawyers.
Paul-Erik Veel | October 28, 2022
Variable Insurance Over a Class Period: Does a Substantive Problem have a Procedural Solution?
It is often said that the Class Proceedings Act, 1992 is a procedural statute, not a substantive statute. What that means in practice is unclear, given that different procedural rules can have an impact on substantive outcomes. However, even a narrow version of that claim—that the Class Proceedings Act does not grant the Court jurisdiction to create or extinguish substantive rights beyond what the Court could do in an individual claim—is very much up for debate. There are increasing examples of creative judges using provisions under the Class Proceedings Act to take steps that impact substantive rights in a manner that would be impossible in an individual claim. The Court’s recent decision in Cavanaugh v Grenville Christian College presents such an example.
Paul-Erik Veel & Nina Bombier | October 6, 2022
Dismissal for Delay in Class Actions: How Low is the Bar for Avoiding Dismissal?
It has been just under a year since the new dismissal for delay provision in s. 29.1 of the Class Proceedings Act started resulting in dismissals for delay. In essentially all of the decisions rendered to date, judges have strictly construed those provisions to require the dismissal of matters where the statutory criteria for avoiding a dismissal are not present. The recent decision of the Ontario Superior Court in Lubus v Wayland Group Corp is now an outlier that takes a different approach.
Paul-Erik Veel | August 24, 2022
Same Titles, Different Jobs: The Challenges of Misclassification Class Actions
Employment law misclassification class actions are becoming increasingly common. In those cases, the plaintiff says that employees have been misclassified by their employer in such a way as to render them ineligible for certain benefits under applicable provincial employment standards legislation which the employee claims that they should have been eligible for. The two most common categories of alleged misclassification are employees being allegedly misclassified as independent contractors, and ordinary employees being misclassified as managers. While some misclassification cases have been certified, courts have refused to certify many others due to a lack of sufficient commonality. The recent decision of the Ontario Superior Court of Justice in Le Feuvre v Enterprise Rent-A-Car Canada Company is an example of a case that falls into the latter category and was not certified.
Paul-Erik Veel | July 26, 2022
Factors Influencing the Likelihood of Winning an Appeal at the Supreme Court of Canada
Earlier this year, we launched our Supreme Court of Canada Decisions Project. Our dataset contains information about every Supreme Court of Canada decision going back to the mid-1950s.
Paul-Erik Veel | June 28, 2022
Rebuck v Ford Provides More Fuel for Defending False Advertising Class Actions
Historically, many class actions practitioners considered certification the primary fight in a case. It was common that cases would settle not long after certification, so the whole ballgame was perceived to be in the certification motion. Yet with the courts consistently reaffirming the low bar for certification, we are seeing a greater number of class actions determined on their merits after certification. And as the recent case of Rebuck v Ford Motor Company shows, success on certification is by no means a guarantee of success on the merits.
Paul-Erik Veel | June 17, 2022
Early Insights from the Supreme Court of Canada Decisions Project
In February 2022, we launched our Supreme Court of Canada Decisions Project. The core of that project is a publicly available database that contains detailed information about every Supreme Court of Canada decision going back to the mid-1950s. Anyone interested in analyzing the data for themselves can download a copy of our database and the coding manual at supremecourtdatabase.com.
Paul-Erik Veel & Katie Glowach | April 25, 2022
Is Increased Enforcement of the Competition Act Coming?
On February 8, 2022, the Competition Bureau released several recommendations for amending the Competition Act in its response to Senator Wetston’s call for submissions on Canada’s competition policy framework. The paper, entitled “Examining the Canadian Competition Act in the Digital Era”, identifies areas that the Competition Bureau believes are ripe for modernization. The paper, and Senator Wetston’s request for submissions, occur during a time when the federal government has indicated an openness to amending the Competition Act. While nothing in the Bureau’s submission has the force of law, the Bureau’s views on these matters will undoubtedly be taken very seriously, and some of the amendments the government is already considering mirror those in the Bureau’s submission. Consequently, the Bureau’s paper provides insight into the future direction of competition law in Canada.
Paul-Erik Veel & Katelyn Leonard | February 11, 2022
The Act (Mostly) Means What it Says: The First Judicial Insights into Dismissal for Delay under the Class Proceedings Act
On October 1, 2020, section 29.1 of the Class Proceedings Act (“CPA”) took effect. This provision, designed to address the phenomenon of class actions being started and then languishing in the system without advancement, provides for a mandatory dismissal of an action where, by the one year anniversary of the claim, the plaintiffs certification record has not been filed or there is no established timetable (by consent or Court order). This was a significant improvement to a class actions system that previously had no real tool for dealing with class actions that were languishing.
Margaret Robbins & Paul-Erik Veel | January 25, 2022
Competition Bureau Prioritizes Greenwashing: Keurig Fined $3 Million Over Recyclability Claims
The Competition Bureau’s focus on greenwashing continues to grow. This past week, the Bureau announced in a news release that it had reached a $3 million settlement agreement with Keurig Canada Inc. in respect of concerns over misleading and false claims about the recyclability of its single use Keurig K-Cup Pods. The agreement marks a growing trend in enforcement activities against “greenwashing”, the practice of making false or misleading environmental ads or claims about a product’s environmental benefits.
Paul-Erik Veel & Mari Galloway | January 12, 2022
Getting Leave to the Supreme Court of Canada: 2021 by the Numbers
Many of you have seen our weekly blog posts that provide predictions as to how likely it is that particular cases will get leave to the Supreme Court of Canada. Those predictions are based on a dataset of every Supreme Court leave application decision from January 1, 2018 to the present. While those predictions are one use of our data, it’s not the only use. Here we present another: a quantitative year in review of leave applications decided by the Supreme Court of Canada in 2021.
Paul-Erik Veel | January 5, 2022
Interventions at the Supreme Court of Canada: Is a More Robust Assessment Coming?
Interventions have long been extremely common at the Supreme Court of Canada. Most cases will have at least a few interveners while particularly high profile or contentious cases may have as many as 15 or 20. In Canada (Minister of Citizenship and Immigration) v Vavilov, for example, there were 24 groups of interveners, including the Attorneys General of four provinces.
Paul-Erik Veel | November 18, 2021
The First Three Months of the SCC Leave Project: A Successful Start
Three months ago, we launched our Supreme Court of Canada Leave Project. Part of that project is a machine learning algorithm that provides predictions of the likelihood of different cases getting leave to the Supreme Court. Since launch, we’ve made fourteen weekly predictions for leave applications to the Supreme Court of Canada. Our model has provided predictions for the likelihood that leave would be granted from 123 decisions of Courts of Appeal across the country.
Paul-Erik Veel | June 25, 2021
Did COVID-19 make it harder to get leave to the Supreme Court?
As many will know, Lenczner Slaght maintains an ongoing database of every application for leave to appeal to the Supreme Court of Canada that was decided from January 1, 2018 onward. We use this data to train a machine learning algorithm to predict the likelihood of cases getting leave, which we use for various purposes.
Paul-Erik Veel | June 11, 2021
The SCC Leave Project: Predictions for May 6, 2021
Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on May 6, 2021.
Paul-Erik Veel | May 4, 2021
The SCC Leave Project: Predictions for April 8, 2021
Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 8, 2021.
Paul-Erik Veel | April 7, 2021
The SCC Leave Project: Predictions for March 25, 2021
Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on March 25, 2021. Each week, we’ll be providing a short blog post that summarizes some of the upcoming cases and gives a prediction, of the probability that leave will be granted. These predictions will be based on our proprietary machine learning model and dataset of every leave application decision released by the Supreme Court of Canada from January 1, 2018 onward.
Paul-Erik Veel | March 23, 2021
The SCC Leave Project: A Machine Learning Algorithm to Predict the Likelihood of Getting Leave to the Supreme Court of Canada
In the spring of 2020, we posted an analysis of the Supreme Court of Canada’s 2019 Year in Review and summarized some of the statistics found in that document. Unfortunately, the general statistics found in the 2019 Year Review were high level and limited the analysis we could provide about what was happening at the Supreme Court of Canada. We also could not find any publicly available and current datasets that would allow us to provide a more detailed analysis.
Paul-Erik Veel | March 22, 2021
Barrick Gold Corporation: A golden opportunity to publicly correct s 138.1 of the Securities Act, or a significant change in the law?
Securities law class actions are now common in Ontario. However, courts are still addressing some of the core elements of the conceptual approach to such issues. The recent decision in the Ontario Court of Appeal in Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund v Barrick Gold Corporation (“Barrick Gold”) is a highly significant decision in this area, particularly in its treatment of the “public correction” requirement for securities class actions.
Paul-Erik Veel | March 18, 2021
Getting Leave to Appeal to the Supreme Court: Empirical Insights from Tax Cases
As I have posted before, I’m a fan of using empirical data to inform legal practice. Much as the evidence-based medicine movement has taken hold in the field of medicine, the practice of law should, wherever possible, rely on objective data to inform our decision-making. Unfortunately, empirical legal work remains at an early stage. While there are some academics embracing empirical analysis, much of legal academic scholarship does not involve the quantitative analysis of empirical data. In my view, it is important for lawyers to test our intuitions whenever we can by reference to whatever data is available.
Paul-Erik Veel | January 20, 2021
The Supreme Court of Canada’s Holiday Present: Simpler Rules for 2021
The Supreme Court of Canada has announced important changes to the Rules of the Supreme Court of Canada that will take effect on January 27, 2021. The amendments were published in the Canada Gazette here, and the Supreme Court of Canada has also published a plain language guide for these amendments here. While these changes are fairly minor in the grand scheme of Supreme Court practice, they will simplify the process for seeking leave to the Supreme Court of Canada.
Paul-Erik Veel | January 8, 2021
I wish we were better strangers: Parliament’s proposed statutory cause of action for privacy breaches may attract class plaintiffs
Referring to living “in an era in which data is constantly flowing across borders”, Canada recently introduced Bill C-11. If enacted, it will radically alter the Canadian privacy litigation landscape. Bill C-11 contains the Consumer Privacy Protection Act (“CPPA” or the “Act”), and the Personal Information and Data Protection Tribunal Act (“PIDPTA”), and makes a number of consequential amendments to existing legislation. Bill C-11 would bring Canada closer to the European Union’s General Data Protection Regulation, which set the standard for data protection in the developed world.
Paul-Erik Veel | November 25, 2020
Mr. Sub franchisees order a large class action, but the Supreme Court is fresh out of duty of care
The concept of a duty of care is foundational to the common law concept of negligence. Whether a duty of care exists and, if so, the scope of that duty of care are hotly contested issues that have made their way to the Supreme Court of Canada many times over the last few decades. Today, the Supreme Court of Canada released its long-anticipated decision in 1688782 Ontario Inc v Maple Leaf Foods Inc, in which a narrow majority of the Supreme Court found that Maple Leaf Foods owed no duty of care to Mr. Sub franchisees in connection with a listeria outbreak and product recall. While the principles set out in Maple Leaf Foods are not fundamentally new, the majority’s decision provides insight into the application of the duty of care analysis in cases involving pure economic loss.
Scott Rollwagen & Paul-Erik Veel | November 6, 2020
Waiver of tort is dead, long live waiver of tort!
Waiver of tort has long been a contentious subject in Canadian law. Many, many courts have permitted waiver of tort claims to proceed in class actions. Yet no court had definitively ruled as to whether waiver of tort in fact existed. It was for this reason that the Supreme Court of Canada’s decision in Atlantic Lottery Corporation v Babstock has been so highly anticipated. Most expected that the Supreme Court would finally answer whether a waiver of tort existed as an independent cause of action under Canadian law. This in turn would have significant consequences for many types of cases, including many types of class actions.
Paul-Erik Veel | July 24, 2020
Trial Advocacy is (Mostly) the Same Online: Lessons Learned from a Virtual Patent Trial
The COVID-19 pandemic has required courts to adapt to new ways of providing access to justice. We have first-hand experience with this new reality.
Sana Halwani & Paul-Erik Veel | June 30, 2020
Supreme Court Sides with Drivers in Uber Case; Deals Blow to Arbitration Clauses
The Supreme Court of Canada has released its highly anticipated decision in Uber Technologies Inc v Heller.
Chris Kinnear Hunter & Paul-Erik Veel | June 26, 2020
Court of Appeal Affirms Jurisdiction to Hear Appeals in Writing
The old saying that "to a hammer, every problem looks like a nail" is disquietingly relevant to traditional approaches to the dispensation of justice. For a long time, commentators have observed that the legal profession and the Courts lag behind much of the rest of society in leveraging digital resources to improve the quality, speed, and efficiency of litigation.
Scott Rollwagen, Sana Halwani & Paul-Erik Veel | May 15, 2020
A Quantitative Look at the Supreme Court of Canada
Lawyers are trained to do close and careful reading of cases. We are experts in textual analysis of individual decisions, and we can spend hours arguing over what individual paragraphs in Supreme Court of Canada decisions mean. Yet while individual decisions are important, so are the aggregate trends. Quantitative data can reveal important information that lawyers can use to engage in more effective advocacy and better inform our clients as to what to expect.
Paul-Erik Veel | May 4, 2020
Can an “Episodic” Price-Fixing Conspiracy be Certified as a Class Action?
Many price-fixing class actions allege a reasonably uniform conspiracy. The stereotypical scenario alleged is that executives from different companies meet in a dark, smoke-filled room and agree to raise prices or restrain output in some uniform fashion. While that is an oversimplification, and reality is always much more complex, the basic core of most price-fixing allegations is that there was a uniform conspiracy that impacted all, or at least most, consumers in a broadly similar way. This is what has made so many price-fixing class actions amenable to certification.
Paul-Erik Veel | April 22, 2020
Do courts have jurisdiction to order virtual hearings? Absolutely!
The initial reaction of most Canadian courts in the face of the COVID-19 pandemic was to shut down completely. This undoubtedly made sense from a public health perspective. However, as the Ontario Superior Court of Justice noted in its recent practice direction, courts have “constitutional responsibility to ensure access to justice remains available”. Consequently, courts have been taking gradual steps towards reopening and allowing certain cases to be heard.
Scott Rollwagen, Sana Halwani & Paul-Erik Veel | April 7, 2020
My Kingdom for a Horse: Rules Against Price Gouging Come to Ontario
Laws against price-gouging have come to Ontario. On Saturday, March 28, 2020, the provincial government issued a press release announcing that it was enacting an Order to prohibit price-gouging. The press release announced that that Order “prohibits persons, including retailers, from selling necessary goods for unconscionable prices”. The press release also announced that the definition of unconscionable prices would be “consistent with well-established principles from the Consumer Protection Act.”
Paul-Erik Veel | April 1, 2020
Strict Requirements for Employers’ Overtime Policies in New Employment Law Class Action Decision
Is an employer obligated to pay overtime if they don’t specifically direct an employee to work overtime? And can an employer’s requirement that employees obtain pre-approval for any overtime they work shield them from the obligation to pay overtime if pre-approval isn’t obtained? These are important issues for any employer.
Paul-Erik Veel & Aoife Quinn | March 31, 2020
Competition Law in the Time of Coronavirus
The rapid spread of the novel Coronavirus (COVID-19) is causing significant dislocation to every aspect of our daily lives. For businesses, COVID-19, and the public health responses being taken to try to limit its spread, will have a significant financial impact. Social distancing and self-isolation will result in fewer customers visiting brick-and-mortar retailers, and uncertain economic times will result in an overall drop in consumer demand. Each of these will cause pain for businesses.
Paul-Erik Veel | March 17, 2020
Bill 161: Much Needed Modernization for Class Actions in Ontario
On December 9, 2019, the Attorney General of Ontario introduced Bill 161, the Smarter and Stronger Justice Act, 2019. The new bill is omnibus legislation that proposes broad reforms to the legal system in Ontario. While the draft legislation will keep commentators busy for weeks or months, I focus here on one set of proposed reforms: those to the class actions regime in Ontario.
Paul-Erik Veel | December 10, 2019
No risk, no appeal: Ontario Court of Appeal rules that class members cannot appeal settlement approvals
On October 17, 2019, a five-judge panel of the Ontario Court of Appeal released its unanimous decision in Bancroft-Snell v Visa Canada Corporation. The Court’s decision has significant implications for the procedural rights of class members involved in settlement discussions and approval under the Class Proceedings Act, 1992.
Paul-Erik Veel & Adam H. Kanji | October 18, 2019
Let it Rain: Supreme Court Green Lights Umbrella Purchaser Class Actions
On September 20, 2019, the Supreme Court released its long-awaited decision in Pioneer Corp v Godfrey. Godfrey is the Supreme Court’s latest decision involving price-fixing class actions, and expands on and clarifies the basic approach to these cases that the Court laid out six years ago in Pro-Sys Consultants Limited v Microsoft Corporation.
Paul-Erik Veel & Chris Kinnear Hunter | September 20, 2019
The LCO’s Class Actions Final Report: The Defence Perspective
As has now been widely reported, the Law Commission of Ontario has released its final report on class actions which makes recommendations to improve the system of class actions in Ontario. Our colleagues, Brian Kolenda and Derek Knoke, commented on those that will be of interest to plaintiffs in their blog post here. We provide the defence counsel perspective here.
Monique Jilesen & Paul-Erik Veel | July 29, 2019
Class actions against investment advisors? Don’t bet on it
Class actions are common in the financial services sector. The relatively low bar for certification of such claims as class proceedings means that many such claims are certified. Yet certification is by no means automatic: where the litigation will not be significantly advanced through the resolution of common issues, courts will typically be reluctant to certify an action as a class proceeding.
Andrew Parley & Paul-Erik Veel | July 4, 2019
Confusion over “some basis in fact” rolls on in British Columbia Court of Appeal’s RoRo decision
Certification is a vital step in every class action. In order for a class action to be certified, the proposed representative plaintiff must show “some basis in fact” to believe that the certification requirements are met. These requirements include that there are common issues of fact or law and that a class action would be the preferable procedure for resolving those common issues. The Supreme Court of Canada was clear in its decision in Pro-Sys Consultants Ltd v Microsoft Corporation that the some basis in fact standard is less onerous than a balance of probabilities standard. However, how that standard is to be applied remains a source of great difficulty for courts.
Paul-Erik Veel | May 31, 2019
Once more unto the breach: the Supreme Court of Canada weighs in again on arbitration clauses and class actions
The question of whether and when arbitration clauses will preclude a class proceeding is seemingly continually litigated. In some circumstances—such as in the consumer protection context—legislatures have clarified that certain claims cannot be subject to arbitration. In other cases, however, it is up to courts to craft the appropriate rules. The recent decision of TELUS Communications Inc v Wellman shows that the question of what rules are appropriate can attract significant disagreement. In a 5-4 split decision, the majority of the Supreme Court of Canada held that valid arbitration clauses in contracts should generally be given effect and that persons with such contracts should not be included in class proceedings.
Paul-Erik Veel | April 5, 2019
No March Break for Competition, as Bureau Releases New Abuse of Dominance and Intellectual Property Enforcement Guidelines
March 2019 has been a busy month for the Competition Bureau. On March 7, the Bureau released its updated Abuse of Dominance Enforcement Guidelines. Then, on March 13, the Bureau released its updated Intellectual Property Enforcement Guidelines (“IPEGs”). While neither new enforcement guideline reflects a fundamental shift in the Bureau’s approach to these issues, they provide new guidance and reflect important nuances in the Bureau’s consideration of these issues, particularly regarding abuse of dominance.
Paul-Erik Veel | March 14, 2019
Applying Foreign Law in Canadian Class Actions: A Novel Application of Old Principles in Das v George Weston Limited
On December 28, 2018, the Ontario Court of Appeal released its decision in the case of Das v George Weston Limited. At 114 pages, the Court’s decision is thoroughly reasoned and substantive. It also deals with important issues that are significant to all class action practitioners. For those who don’t want to wade through the full sets of reasons—and there’s a lot there—here’s our summary of the key take-aways from the Court of Appeal’s decision.
Paul-Erik Veel | January 23, 2019
Court of Appeal rates arbitration clause one star in proposed employment class action against Uber
A frequently litigated issue in Canadian class actions is the extent to which parties can agree in advance to opt out of class actions in favour of private arbitration. In the context of consumer protection claims, provincial legislatures have generally eliminated the ability of defendants to defeat class actions through arbitrations by declaring clauses requiring the parties to submit such disputes to private arbitrations to be void. However, it has remained an open question as to whether and when courts would enforce arbitration clauses in other contexts, where the effect of such enforcement would be to defeat a proposed class proceeding.
Paul-Erik Veel | January 2, 2019
Proactively managing class action risk: the virtue of voluntary compensation
Product liability cases are routinely certified as class proceedings. Indeed, allegations that a product was negligently manufactured, or that a manufacturer failed to warn consumers of a particular risk, seem particularly amenable to resolution on a class-wide basis. However, not every such case is certified as a class proceeding. The recent decision of the Ontario Superior Court of Justice in Richardson v Samsung Electronics Canada Inc is one example of a case that was not certified. More importantly, it shows what steps defendants can proactively take to avoid certification of class actions against them.
Paul-Erik Veel | October 31, 2018
Recent decision in pharmaceutical class action highlights importance of scrutinizing common issues in proposed class proceedings
While class actions can be a useful tool for access to justice, there are limits to the types of claims that can be appropriately advanced through class proceedings. Indeed, the requirements for certification that appear in similar form in virtually every class action statute across Canada are meant to ensure that only those actions that can meaningfully proceed as class actions are in fact certified. Many cases, including certain types of pharmaceutical product liability claims, will simply be unsuitable for certification as a class action. The recent decision of the Ontario Superior Court in Price v H Lundbeck A/S provides an example of such a case.
Paul-Erik Veel | August 2, 2018
Pre-certification motions in class actions: are courts setting the bar too high for early and efficient disposition?
As I have observed before, class actions are expensive for defendants and resource-intensive for the justice system. In order to try and minimize that expense, defendants typically want to dispose of class actions they face as early as possible. This has given rise to a body of case law that addresses the question of when defendants will be allowed to bring pre-certificate motions. As the recent decision of the Ontario Superior Court of Justice in Austin v Bell Canada shows, defendants face a high threshold in persuading the court to allow such motions to precede certification.
Paul-Erik Veel | July 4, 2018
A tale of two forums: consumer class actions and the CRTC in telecommunications cases
Given Quebec’s unique civil law regime, we seldom blog about legal developments in Quebec. However, sometimes decisions of Quebec courts have broader relevance outside of Quebec; this is often the case where Quebec courts rule on federalism issues. The Quebec Court of Appeal’s recent decision in Bell Canada v Aka-Trudell falls into that category. In that case, the Quebec Court of Appeal refused to dismiss a class action against Bell Canada, rejected the argument that the Quebec Superior Court had no jurisdiction and that the matter ought to have instead been considered by the Canadian Radio-television and Telecommunications Commission (the “CRTC”).
Paul-Erik Veel | June 11, 2018
Foreign Discovery in Advance of Certification in a Class Action? Not So Fast, says Divisional Court
Given the expansive discovery rights available under US law, plaintiffs may be tempted to try to use those rights in pursuit of proceedings under Canadian law. In its recent decision in Mancinelli v RBC, the Divisional Court placed an important limit on the ability of parties to do so. The Divisional Court upheld an order requiring plaintiffs in a proposed class action to obtain Court approval before taking any steps in furtherance of a subpoena issued by an American court.
Paul-Erik Veel & Chris Kinnear Hunter | April 27, 2018
Sweet Justice for IP Rights Holder: Agreement not in Restraint of Trade
The intersection of intellectual property law and competition law is an area that gains greater significance with each passing year. Much of the focus in this area recently has been on the appropriate scope of action to take by regulators. For example, in Canada, the Intellectual Property Enforcement Guidelines promulgated by the Competition Bureau in 2016 have attracted significant attention.
Paul-Erik Veel & Andrew Skodyn | April 3, 2018
Justice Perell Stays Proposed Class Proceeding against Uber, in Favour of Arbitration in the Netherlands - Heller v Uber Technologies Inc.
A long-standing issue in Canadian class actions law relates to the ability of parties to contract out of class actions and instead require that any disputes be submitted to arbitration. For class counsel and class members, such clauses are anathema, representing an attempt by sophisticated organizations to thwart class actions by requiring individual claims to proceed to arbitration. For businesses, such clauses have significant value; they can result in individual cases being resolved quickly and efficiently, without the complications and attendant costs of a class action.
Paul-Erik Veel | March 28, 2018
The regulated conduct defence: we’ll drink to that
It says something about Canada that many famous cases throughout Canadian legal history relate to the regulation of alcohol. Through the early 20th century, the regulation of alcohol was a fertile domain for disputes about Canadian federalism. Now, in the 21st century, the complicated regulatory scheme of governing alcohol sales in Ontario is once again making new law. This time, however, the dispute is not over arcane principles of federalism, but rather over the scope of the regulated conduct defence to conspiracies under the Competition Act. While early 20th century federalism cases may be of interest to only a select few, the decision of the Ontario Superior Court of Justice in Hughes v Liquor Control Board of Ontario is likely to attract significantly broader interest, particularly among companies operating in regulated industries.
Paul-Erik Veel & Margaret Robbins | March 22, 2018
Toll the death knell for class-based public interest privilege in competition proceedings?
The Competition Bureau relies heavily on voluntary cooperation from corporate Canada in order to enforce the Competition Act. Companies typically want assurances of confidentiality in order to cooperate with the Bureau. In recognition of the fact that companies are less likely to cooperate with the Competition Bureau if commercially sensitive information might be disclosed to third parties, the Competition Act provides a number of confidentiality protections for information acquired by the Bureau from third parties.
Paul-Erik Veel | February 6, 2018
Voluntary Gift Cards: An Effective Strategy for Reducing Liability?
The recent admissions by supermarket chain Loblaws and a related group of companies that they engaged in conduct to fix the retail price of bread products have drawn significant public attention to price-fixing. And Loblaws’ response to those revelations of price-fixing—including giving consumers gift cards to be used at Loblaws—has also attracted significant interest, not just from the public, but also from businesses and the antitrust and class actions bar. For organizations that have engaged in misconduct looking to make a public response, Loblaws’ actions highlight both the potential benefits and risks of such voluntary remediation.
Paul-Erik Veel | January 12, 2018
Competing Fairly from a Monopoly Position: Six Things to Know about Abuse of Dominance After TREB
Under Canadian law, many provisions of the Competition Act can only be enforced by the Commissioner of Competition, and not by private parties. That has led to a dearth of jurisprudence, and certainty, regarding the interpretation of several provisions of the Competition Act. For that reason, both major businesses and industry groups will want to take careful note of the recent decision in Toronto Real Estate Board v Commissioner of Competition, where the Federal Court of Appeal gave further guidance as to when a party will be liable for abuse of dominance.
Paul-Erik Veel | December 8, 2017
Absent foreign claimants at the gates of Canadian class actions
Class actions are almost invariably complicated and expensive matters for businesses to deal with. Such class actions only become more complicated and expensive the bigger the classes are. Now, in Airia Brands Inc v Air Canada, the Ontario Court of Appeal has given the green light to a class action that includes class members all around the world. This decision has significant implications for virtually all multinational businesses.
Paul-Erik Veel | October 19, 2017
Compelling disclosure from the Competition Bureau for use in class actions: where are we now?
A recurring source of challenging legal problems in the price-fixing class actions, and in class actions more generally, is the issue of what information and evidence the Courts can compel government investigators to provide to private litigants for use in those class actions.
Paul-Erik Veel | September 29, 2017
Umbrella purchasers: Who are they, what do they want, and why are Courts (sometimes) certifying their claims?
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 fuss is about umbrellas. 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.
Paul-Erik Veel | August 23, 2017
Ontario Updates International Commercial Arbitration Act
Ontario’s new legislation governing international commercial arbitration, the International Commercial Arbitration Act, 2017, came into force on March 22, 2017, replacing the International Commercial Arbitration Act previously in place.
Shara N. Roy, Paul-Erik Veel & Chris Kinnear Hunter | April 3, 2017
A risky rule of thumb for estimating damages in competition class actions
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.
Paul-Erik Veel | January 12, 2017
In contractual disputes, after-the-fact conduct is admissible after all
To most people, a contract is a written agreement, typically signed by all parties, that sets out what different parties promise to do. But what happens that the written agreement is ambiguous? Courts have long held that evidence of the “factual matrix” of the contract—that is, the surrounding circumstances that inform the context in which a contract is created—is admissible in the interpretation of a contract. In its recent decision in Shewchuk v Blackmont Capital Inc, the Ontario Court of Appeal confirmed that evidence of subsequent conduct may also be admissible to interpret the agreement itself.
Peter Griffin & Paul-Erik Veel | December 8, 2016
Hundreds of walnuts: Just annoying, or a nuisance?
Lawyers sometimes describe cases as being like a law school problem. Sometimes that means that the case raises difficult and complicated questions of law and fact that are nearly impossible to resolve. And sometimes it means that the case raises an obscure issue that seems more like a dispute between property owners in 19th century England. Gallant v Dugard squarely falls into the latter category.
Paul-Erik Veel | December 1, 2016
Waiting forever for the axe to drop? Discoverability and the limitation period for Competition Act claims
The limitation period for claims under s. 36 of the Competition Act is a longstanding question of Canadian competition law. The plain language of the statute suggests that such claims must be brought within two years of the anticompetitive conduct. But in Fanshawe College of Applied Arts and Technology v AU Optronics Corporation, the Ontario Court of Appeal has reached a conclusion that is much more generous to Plaintiffs, holding that such claims must be brought within two years of the Plaintiff discovering the anticompetitive conduct.
Paul-Erik Veel | August 12, 2016
Private Parts Less Private During Police Searches
A person’s reasonable expectation of privacy in the most intimate parts of their own body may not shield them from a police search if what the police are after is another person’s DNA.
Paul-Erik Veel & Jonathan D. Langley | July 26, 2016
Want an injunction? It could cost you
An interlocutory injunction is a valuable tool to maintain the status quo between parties, pending the resolution of litigation. Most disputes over whether an interlocutory injunction should be granted will depend on whether there will be “irreparable harm” if an injunction is not granted. However, as Guelph Taxi v Guelph Police Service shows, it is also critical that the party seeking an injunction give a meaningful undertaking to pay damages if the injunction is granted but the party is ultimately unsuccessful.
Paul-Erik Veel | July 8, 2016
The Rules of Evidence Still Apply in PMNOC Section 8 Cases
It’s no surprise to litigators that some courts tend to be relaxed with the rules of evidence in civil cases. In many contexts, courts are prepared to admit inadmissible hearsay evidence and simply address evidentiary concerns by noting that such evidence may be given less weight. That type of approach was often taken in cases under section 8 of the Patented Medicine (Notice of Compliance) Regulations.
Monique Jilesen & Paul-Erik Veel | June 7, 2016
When does an Employer's Breach of Contract Make a Non-Competition Clause Unenforceable?
Non-competition clauses in employment agreements pose challenges for employers who seek to enforce them. Non-competes have to be reasonable in scope at the time they are agreed to; a perpetual or geographically unlimited non-compete covering a broad range of competitors is almost certain to be unenforceable. However, as the recent B.C. Supreme Court decision in P.R.I.S.M. v. Kramchynski highlights, an employer seeking to rely on a non-compete against a former employee must also uphold their obligations under their contract with that employee.
Paul-Erik Veel | May 30, 2016
No absolute privilege for city councillors' speech
In its recent decision in Gutowski v. Clayton, 2014 ONCA 921, the Ontario Court of Appeal provided helpful advice to two sets of professionals: municipal councillors and lawyers. First, the Court confirmed for municipal councillors that they do not enjoy absolute privilege for defamatory statements they make during municipal council meetings. Second, the Court signalled to litigators that a Rule 21 motion is not the "appropriate vehicle" through which to attempt to develop an area of law that is not fully settled.
Paul-Erik Veel | January 23, 2015
When are costs awarded for travel disbursements for out-of-town lawyers?
Its trite law that an unsuccessful litigant generally pays the successful partys costs. But what happens when the winner hired lawyers from out-of-town who had to travel regularly for the case?
Paul-Erik Veel | November 28, 2014
Court of Appeal makes certification of class actions for overtime pay more difficult
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.
Paul-Erik Veel | October 30, 2014
BC Court Signals Change in Patent Landscape with Viagra Decision
The British Columbia Supreme Court's decision in Low v. Pfizer Canada Inc., 2014 BCSC 1469 could radically change the legal landscape for patent law in Canada. Patent law has thus far been entirely statutory rather than a product of the common law; courts had not recognized any common law rights or remedies in relation to patents. The decision of Justice Smith changes that, and in so doing changes the risks innovators must consider.
Paul-Erik Veel | September 18, 2014
