Canada Case Law

Tietz v. BLOK Technologies Inc.

Court

British Columbia Court of Appeal

The chambers judge erred in excluding early sellers and in dividing the class into Canadian and non-Canadian subclasses; s.140.3 of the Securities Act applies to issuers with a real and substantial connection to British Columbia regardless of the exchange through which shares were acquired, and the pleadings sufficiently allege an overarching conspiracy so certification was appropriate; appeal allowed to include early sellers and remove subclass division; cross-appeal dismissed.

Source excerpt

• Secondary market misrepresentation
• Civil conspiracy
• Class certification
• Preferable procedure
• Multiple conspiracies problem
• Early sellers exclusion

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Canadian Hockey League v. McEwan

Court

British Columbia Court of Appeal

The appeal is dismissed because the case management judge did not err in exercising her discretion: the proposed cross‑examinations would chiefly affect credibility and weight reserved for trial, would not materially assist determination of certification requirements including commonality and "some basis in fact," and concerns about delay were legitimate given the litigation history; her refusal is entitled to deference and is affirmed.

Source excerpt

• Certification
• Cross-examination of affidavits
• Common issues
• Preferable procedure
• Expert evidence
• Gatekeeping

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Crawford v. FCA Canada Inc.

Court

Supreme Court of British Columbia

Application dismissed because defendants failed to show the proposed cross-examination would likely yield relevant information beyond what is apparent on the face of the affidavits, and the marginal utility did not outweigh the risk of delay and added cost; timing alone did not preclude consideration but did not justify leave.

Source excerpt

• Certification
• Commonality
• Admissibility of expert evidence
• Leave to cross-examine affidavits
• Preferable procedure
• Timeliness and costs

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Reichert v. Canada (Attorney General)

Court

British Columbia Court of Appeal

Appeal from refusal to certify a proposed class action dismissed. The Court held the chambers judge reasonably found a pension scheme and individual issues made a class proceeding not preferable.

• Preferable procedure
• Certification
• Limitation period
• Crown liability and proceedings act s.9
• Pension act s.111
• Access to justice

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Crotty v. Aviva General Insurance Company

Court

Newfoundland and Labrador Court of Appeal

The Court held the trial judge erred in law by using evidentiary material and by mischaracterizing the insurer's obligation to pay 'reasonable' expenses as a contractual discretion; the Amended Statement of Claim does disclose viable causes of action for breach of contract and breach of the duty of good faith in relation to unpaid travel benefits and certification of a benefits class is appropriate; claims for return of premiums and unjust enrichment were not viable and cannot form part of the certified class.

Source excerpt

• No-fault section b benefits
• Deductible practice
• Duty of good faith
• Cause of action at certification
• Certification criteria (s.5 caa)
• Preferable procedure

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Canada (Attorney General) v. B.W.

Court

Federal Court of Appeal

The Federal Court did not err in certifying the class: the Further Amended Statement of Claim pleaded sufficient material facts to disclose reasonable causes of action in systemic negligence and Charter ss.7 and 15(1); there was some basis in fact for an objectively defined class and class period; the proposed common questions were capable of meaningfully advancing class members' claims; and a class proceeding was preferable given access to justice and judicial economy considerations. The motion judge's reliance on precedents and parts of other decisions was justified and did not amount to re…

Source excerpt

• Certification criteria
• Systemic negligence
• Charter s.7
• Charter s.15
• Identifiable class
• Common issues

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Voltage Pictures, LLC v. Salna

Court

Federal Court of Appeal

The Federal Court erred to the extent it dismissed certification solely for perceived flaws in the litigation plan that were remediable, but there is no basis in fact that a class proceeding is the preferable procedure because the common questions would not materially advance the case in light of authorities (ESA; Voltage v. Doe FCA) requiring proof that a subscriber personally undertook or controlled the infringing acts; the proposed use of the notice-and-notice regime to solicit class participation violated s.41.25(3) and exceeded the regime’s limited deterrence purpose; accordingly certifi…

Source excerpt

• Notice-and-notice regime
• Preferable procedure
• Representative respondent suitability
• Norwich order
• Costs
• Statutory damages

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Davis v. Amazon Canada Fulfillment Services

Court

Court of Appeal for Ontario

The court upheld the motion judge's certification determination that the driver-associate (DA) group could not establish a common employer relationship between Amazon and 126 autonomous DSPs and that the shared use of the Flex App did not create common issues; therefore the DA class failed s.5(1)(c) and preferable procedure criteria and certification was denied, rendering appellate consideration of the stay unnecessary and the appeal dismissed.

Source excerpt

• Stay of proceedings under arbitration act s.7
• S.7(6) waiver
• Class certification under s.5 cpa
• Common employer doctrine
• Class action waiver
• Unconscionability in adhesion contracts

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Berenguer v. Sata Internacional Azores Airlines, S.A.

Court

Federal Court

The Federal Court dismissed a motion to schedule a fresh certification hearing, holding it had no jurisdiction to reopen a final refusal of class certification.

• Certification
• Issue estoppel
• Functus officio
• Preferable procedure
• Case management powers (rule 385)
• Rule 334.2 continuation vs reanimation

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Chief Derek Nepinak and Chief Bonny Lynn Acoose v. Canada

Court

Federal Court

The Federal Court dismissed certification of this Treaty 4 annuity claim as a class proceeding and allowed it to continue as a representative action.

• Annuity payments
• Indexation and augmentation
• Preferable procedure
• Representative proceedings
• Fiduciary duties
• Admissibility of expert and lay opinion

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