Class Actions: Looking Forward 2022

If 2020 was a year of seismic shifts affecting Canada’s class actions landscape, 2021 was a year of reverberations and aftershocks. The instability and uncertainty created by the COVID-19 pandemic did not disappear. Canadian businesses adjusted to the new normal, pandemic-related class actions entered into a new phase, and judges reacted to landmark decisions and legislative changes from the year before in key substantive and procedural areas. The result was some new, and some familiar, fault lines.

The Class Actions Practice Group at Bennett Jones continued its tradition of nationwide thought leadership in class actions and driving results for clients in the most significant, high-stakes cases of the year. Bennett Jones won the Class Action Team of the Year category in the 2021 Canadian Law Awards for its work in Winder v Marriott International Inc. While practice group members showed exceptionally well in Chambers and Partners and other lawyer rankings and awards, co-heads of the practice group Michael Eizenga, L.S.M. and Cheryl Woodin received the Best Lawyers in Canada Lawyer of the Year award for Class Action Litigation and Product Liability Law, respectively. Michael also received Benchmark’s Canadian Class Action Litigator of the Year award. Look out for his newly published monograph, The Class Actions Handbook, as a helpful contribution to the class actions literature.

In our 2022 edition of Looking Forward, we review notable class action developments of the past year and consider what trends in the law might tell us about the year ahead. We begin with an update on COVID-19 class actions; while some of the initial explosion of claims have now been settled or affected by legislation, others appear headed for merits determinations and new issues are emerging, including those associated with the “Freedom Convoy” protests. Next, we canvass recent case law relevant to product liability class actions, including decisions addressing negligence and breach of warranty causes of action and the approach to claims of pure economic loss. We then discuss the higher certification standard introduced in Ontario in late 2020 as well as diverging approaches across Canadian jurisdictions to certifying class actions, including a noteworthy competition class action decision. We also survey how Canadian courts are using pre-certification stays of overlapping and duplicative proceedings and interjurisdictional coordination and communication to manage parallel class actions. We next consider substantive developments favouring institutional defendants in privacy breach class actions, and highlight an important appeal that will proceed in 2022. Finally, we discuss how recent Ontario and British Columbia decisions may signal a culture shift towards a more bespoke approach to sequencing certification motions and other steps in class actions.

The year ahead could be another volatile one for businesses in Canada. We look forward to helping our clients make full use of available, cutting-edge tools and strategies to limit exposure and navigate claims in the increasingly complex world of Canadian class actions.

Articles In This Series

• An Update on COVID-19 Class Actions in Canada
• The Expansion and Contraction of Product Liability Causes of Action
• Diverging Approaches to the Certification of Class Actions
• Navigating Multijurisdictional Class Actions
• The Need to Prove Compensable Losses in Privacy Class Actions
• Ontario and British Columbia Lead a Sequencing Culture Shift