Class-actions report shows courts' evolving view on certification, multijurisdictional cooperation

Lawyers and judges working to improve multijurisdictional class actions: report

Class-actions report shows courts' evolving view on certification, multijurisdictional cooperation
Ranjan Agarwal, Bennett Jones LLP

In Canadian class actions, the last 12 months have seen inconsistent certification approaches from the courts and the continued impact of COVID, but cooperation among lawyers and judges to coordinate multijurisdictional claims is ongoing, according to a new report from Bennett Jones LLP.

“Class Actions: Looking Forward 2022” provides an update on COVID in what Ranjan Agarwal says he hopes is the final chapter on pandemic-related class actions.

Written by Gannon Beaulne and Rabita Sharfuddin, the chapter on COVID predicts that in 2022, new claims may emerge as “losses crystalize” and limitation periods near conclusion. The authors also suggest the Ottawa Freedom Convoy and the new government measures the protest produced will generate new disputes. Class-action litigation underway, such as those alleging long-term-care-home negligence and those aimed at airlines for cancelled flights, will progress toward merits determination. As variants continue to multiply, businesses may be looking at claims related to outbreaks on their premises, write Beaulne and Sharfuddin.

“We could not escape a discussion about COVID-19 class actions,” says Agarwal, co-head of Bennett Jones’ class actions practice. “We obviously saw a major explosion in claims when COVID first started. But many of those claims have now been settled, or legislation has effectively done away with the cases. And the result, I think, is that we’re seeing the tail end of those kinds of cases.”

Ontario’s amendments to its Class Proceedings Act took effect in October 2020. The amendments created a new, stricter certification standard, gave defendants the right to bring a motion to narrow or dismiss the class action prior to certification determination, and set a timeline of one year before which plaintiffs must file a “final and complete” certification motion record or have their case dismissed. In the chapter on “Diverging Approaches to the Certification of Class Actions,” Emrys Davis, Mia Laity, and Peter Douglas write that only 32 class actions were launched in Ontario in 2021, down from 53 in 2020. The authors expect plaintiffs will continue to opt for friendlier jurisdictions.

The chapter also details the “uneven interpretations” of the some-basis-in-fact standard for certification. This standard has been the evidentiary basis for certification since the beginning of class actions and has not been subject to much legal debate, says Agarwal.

The BC Supreme Court’s McCorquodale v RBC Global Asset Management Inc and Spring v Goodyear Canada Inc, from the Alberta Court of Appeal, provided differing views of how courts should apply the standard, he says. The former granted and the latter denied certification on that basis.

“Ultimately, we see our courts recognizing that certification has to be a meaningful screening mechanism,” says Agarwal. “Judges are pushing back at the idea that the some-basis-in-fact standard allows you to just certify any class action. Ultimately, I think, that’s one aspect of the divergence.”

In the competition class action, Jensen v Samsung Electronics Co Ltd, the Federal Court struck the plaintiffs’ claim at certification. In denying their conspiracy allegations, Justice Denis Gascon endorsed the two-step test for proving some basis in fact for the common issues: showing some basis in fact that the issue exists and that it is common among class members. The plaintiffs failed to persuade Justice Gascon that there was an agreement among the defendants, write Davis, Laity and Douglas.

After several Supreme Court of Canada decisions created a “strong view” that the courts had “effectively greenlit the certification of competition class actions,” Jensen “evens the playing field,” says Agarwal.

“That decision holds the plaintiffs to what, I would say on the defence bar, we believe is a reasonable and rational standard for pleading and proving a case in the competition area.”

He says that the ruling also provides direction on which cases are fit for certification and how lawyers can pursue or defend those claims.

Long the “bugbear” for both plaintiffs’ and defence lawyers, Agarwal predicts the class-action bar is progressing toward more certainty on how multijurisdictional cases should proceed.

The SCC had never weighed in on the issue, and one “very old” law review article argues they are unconstitutional, he says.

“But I think what we’ve seen is that in the absence of high-court interpretation and application, motion judges and, frankly, lawyers are fashioning processes that make multijurisdictional class actions work better for the courts, work better for the bar, work better for clients, and ultimately work better for the public.”

Winder v Marriott International Inc dealt with defendants facing overlapping class actions in B.C., Alberta, Ontario, Quebec, and Nova Scotia. According to the report’s chapter, “Navigating Multijurisdictional Class Actions,” written by Keely Cameron and Alicia Yowart, each case management judge adopted Canadian Bar Association protocols for multijurisdictional class actions, and the parties agreed the judges could correspond and hold a multijurisdictional joint hearing. Participants joined from five Superior Courts in four time zones.

After the parties agreed to proceed with one national class action in Ontario, Superior Court Justice Paul Perell called the process “a remarkably successful collaboration” that “furthers access to justice and the fair and efficient administration of justice across the country.”

Winder and Britton v Ford Motor Company of Canada represent the interjurisdictional cooperation between class-action judges and counsel which the legal system has seen in recent years, particularly since COVID began, write Cameron and Yowart. “In some cases, law firms have taken the lead by organizing consortiums to coordinate national litigation. In other cases, courts have coordinated actions directly,” the authors write.

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