Our Blog

• 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.

  July 24, 2020
  Paul-Erik Veel
• 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.

  June 26, 2020
  Chris Kinnear Hunter

  Paul-Erik Veel
• Navigating Duplicate Proceedings: What Happens When Courts Certify Parallel Pharmaceutical National Class Actions?

  It is not uncommon in the Canadian class action landscape for competing class actions to be commenced in multiple jurisdictions, each procedurally vying in the horse race of who will be named the nation’s choice as national class action. Competitors who lose that race are stopped in their tracks, having to sit along the side lines as the blue-ribbon action proceeds to trial.

  April 23, 2020
  Margaret Robbins
• 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.

  April 22, 2020
  Paul-Erik Veel
• 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.

  March 31, 2020
  Paul-Erik Veel

  Aoife Quinn
• Save It for Certification: The Court’s Answer to the Question of Which Jurisdiction Wore it Better

  Two proposed class actions. Two law firms. Two provinces. One set of facts. Which action will reign supreme? In DALI 675 Pension Fund v SNC Lavalin, the class actions version of “who wore it better”, Justice Belobaba addressed the question of whether a parallel class action proceeding commenced in a separate province constitutes an abuse of process. His answer? Just a healthy dose of competition.

  January 10, 2020
  Kelly Hayden
• 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.

  December 10, 2019
  Paul-Erik Veel
• 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.

  October 18, 2019
  Paul-Erik Veel

  Adam H. Kanji
• 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.

  September 20, 2019
  Paul-Erik Veel

  Chris Kinnear Hunter
• LCO recommendations point to meaningful change in class actions

  The July 17, 2019 final report of the Law Commission of Ontario into class actions has the potential to impact significantly on the prosecution and defence of class actions in Ontario.

  July 29, 2019
  Brian Kolenda

  Derek Knoke
• 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.

  July 29, 2019
  Monique Jilesen

  Paul-Erik Veel
• 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.

  July 4, 2019
  Andrew Parley

  Paul-Erik Veel
• Supreme Court of Canada to weigh in on waiver of tort

  One of the seemingly foundational principles of tort law is that the plaintiff must prove they have suffered loss in order to establish a defendant’s liability. Plaintiffs are entitled to be compensated for the loss they have suffered, and only for the loss they have suffered—or so we thought. In Atlantic Lottery v Babstock, the Newfoundland and Labrador Court of Appeal capped off a developing line of authority in the class actions context that recognizes the possibility of an independent cause of action in “waiver of tort”.  Under this doctrine, claimants would be able to sue tortfeasors for disgorgement of profits gained through wrongdoing, without demonstrating that they themselves have suffered loss from such wrongdoing. This bold decision has attracted the attention of the Supreme Court of Canada, which in May 2019 granted leave to appeal to the defendant Lottery Corporation. Now all that’s left to do is to place your bets.

  June 11, 2019
  Kelly Hayden
• 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.

  May 31, 2019
  Paul-Erik Veel
• 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.

  April 5, 2019
  Paul-Erik Veel
• Class Actions: Settling at the court’s discretion

  Parties to class action settlements often settle, at least in part, to avoid the ordinary uncertainty of litigation. Courts have long emphasized that while they retain discretion to supervise payments of lawyers’ fees as part of a settlement, the settlement approval process will not entail the Court re-writing a settlement that it is not prepared to approve.

  February 21, 2019
  Brian Kolenda
• 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.

  January 23, 2019
  Paul-Erik Veel
• 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.

  January 2, 2019
  Paul-Erik Veel
• 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.

  October 31, 2018
  Paul-Erik Veel
• 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.

  August 2, 2018
  Paul-Erik Veel
• 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.

  July 4, 2018
  Paul-Erik Veel
• 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”).

  June 11, 2018
  Paul-Erik Veel
• 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.

  April 27, 2018
  Paul-Erik Veel

  Chris Kinnear Hunter
• 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. 

  March 28, 2018
  Paul-Erik Veel
• 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.

  March 22, 2018
  Paul-Erik Veel

  Margaret Robbins
• Disrupting the Taxi Industry On a Class Wide Basis: The Certification Decision in Metro Taxi v City of Ottawa Raises Questions for Municipalities

  Since the introduction of ride sharing technology such as Uber, a legal dust-up with traditional taxi drivers and brokers seemed inevitable. Perhaps less predictable was the form that dispute would take. In Metro Taxi Ltd. v. City of Ottawa, the Court considered a certification motion for a class action brought by taxi license plate holders and brokers against the City of Ottawa for their regulatory handling of the introduction of Uber, claiming both negligence and discrimination.

  January 26, 2018
  Margaret Robbins
• 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.

  January 12, 2018
  Paul-Erik Veel
• 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.

  October 19, 2017
  Paul-Erik Veel
• 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.

  September 29, 2017
  Paul-Erik Veel
• 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.

  January 12, 2017
  Paul-Erik Veel
• Copy and Paste: Avoiding Duplicative Procedures in National Class Actions

  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.

  September 28, 2016
  Lawrence E. Thacker

  Madison Robins
• Breaking down the Economic Barrier: Negligent Misrepresentation and Class Actions

  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.

  September 1, 2016
  Eli S. Lederman
• Less is Not Always More: Evaluating Causes of Action in Carriage Motions

  Barrick Gold Corporation’s disclosure, on April 10, 2013, that a Chilean court had issued an interlocutory order suspending the construction of its...

  August 2, 2016
• Are substantial interlocutory costs awards an access to justice tool?

  Costs awards are a key element to the litigation process, rewarding successful parties and dissuading underserving would-be litigants.  The goals of...

  July 20, 2016
• Novel action, settled law

  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.

  August 6, 2015
  Lawrence E. Thacker
• Access to Justice a Key Concern in Certification Decisions

  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.

  April 2, 2015
  Lawrence E. Thacker
• Court Certifies Sino-Forest Class Action

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

  March 3, 2015
  Lawrence E. Thacker
• 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.

  October 30, 2014
  Paul-Erik Veel