Class Actions: Looking Forward 2024

We begin with an update on a trilogy of privacy class action appeals in which the plaintiffs sought, unsuccessfully, leave to appeal to the Supreme Court of Canada to expand the tort of intrusion upon seclusion.

Next, we review a decision in which the Ontario Superior Court clarifies the effect of the 2020 amendments to Ontario’s class proceedings legislation on the test for certification, specifically the superiority and predominance requirements introduced into the preferable procedure criterion.

In a similar vein, we discuss the utilization of section 7 of Ontario’s class proceedings legislation to convert the major junior hockey abuse class action into up to 60 joinder actions after certification was dismissed. After the certification judge determined a class action was not the preferable procedure given the case’s complexity, the question became: what process is available in Canada for mass torts when a class action cannot be certified?

We then discuss the latest court commentary out of British Columbia regarding the effect of differences among provincial consumer protection statutes on plaintiffs’ ability to certify national class actions against product manufacturers.

Shifting focus, we turn to another British Columbia decision, in which certification was denied in a class action regarding a wildfire, demonstrating the court’s commitment to the certification application as a meaningful screening device for proposed class actions. In this case, the failure to provide sufficient, admissible evidence regarding causation was determinative of the class action’s failure.

Next, we canvass a series of competition class actions demonstrating that defendants have had increased success in criticizing proposed class actions as speculative by attacking pleadings and case theories, rather than focusing primarily or exclusively on issues of harm.

Moving on, we discuss the Ontario Superior Court’s recent emphasis on the need, in a negligent design class action, for evidence on the product from a qualified design expert, even in the context of a certification motion. The case at issue concerned the 2018 Danforth shooting in Toronto and the product at issue was a Smith & Wesson handgun.

We then provide an overview of the highly anticipated common issues trial decision in the COVID-19 business interruption insurance coverage class action, in which the Ontario Superior Court dismissed the action in its entirety. The decision is the first of its kind in Canada to consider the application of insurance contract interpretation principles to COVID-19 pandemic-related claims.

Exploring more trends in Ontario, we turn to a discussion of a demonstrative securities class action decision from the Ontario Court of Appeal concerning secondary market misrepresentation claims. In this decision, the court endorsed a robust approach to the test for leave to assert secondary market claims, affirmed that motions judges are entitled to carefully scrutinize the evidence led in support of leave, and gave direction as to what constitutes a “public correction” under the Ontario Securities Act.

Finally, we provide a report from Quebec highlighting notable cases concerning consumer class actions heard on the merits, causation in the no-fault liability context and challenging the scope of a proposed class based on jurisdiction.

Our Class Actions group continued to drive results for clients in the most high-profile, high-stakes and most complex cases of the year, successfully acting on several precedent-setting decisions.

The firm won the Class Action Firm of the Year at the 2022 Canadian Benchmark Litigation Awards. Practice group co-chair Mike Eizenga has won Benchmark’s Class Action Litigator of the Year six times in the last eight years, and co-chair Cheryl Woodin was awarded Benchmark’s Class Action Litigator of the Year in 2023. Other practice group members have also received recognition and distinction for their expertise in the field by Chambers and Partners. Bennett Jones’ Class Action Litigation group is highly ranked in Chambers and Partners in Dispute Resolution: Class Actions. 

Our national reach continues to expand with the growth of our new Montréal office over its first full year in operation, enabling us to further serve class action and competition clients in all Canadian jurisdictions where they may face litigation.