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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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