Recently, there was extensive media coverage of a US district
court's refusal to certify a proposed privacy class action
against Google (see one such article HERE). The case alleged that Google had
intercepted and read users' emails, and mined the content of
those emails for targeted advertising. Plaintiff's
counsel had argued that the case could give rise to the highest
award of damages in any class action, anywhere, to date.
Does the US court's refusal to certify mean no such case
will be filed or certified in Canada?
The US court's refusal to certify the action in the US
certainly makes a Canadian class action less likely. Canadian
class actions often follow after US class action actions, and so
certification, settlement or success on the merits of the case, or
any of these, make subsequent Canada cases more likely, and the
contrary is also true.
However, there can be significant differences between the
substantive law of Canadian and US jurisdictions. These
differences mean that certain types of cases, where Canadian and US
law are more similar, are more prone to "copycat"
Canadian class actions. Areas of such similarity include
common law allegations, like product liability and breach of
contract, rather than allegations that depend on breaches of
legislation that may differ more between the jurisdictions.
The Google case involved allegations of breaches of US privacy
Although Canadian class action statutes were originally modeled
on the US Rule 23 of the Federal Rules of Civil Procedure, there
are also differences between the procedural class action law in
Canadian jurisdictions and the US. Some of these differences
Canadian class actions need not fulfil the US
"numerosity" requirement – in BC, for example, the
class must simply consist of "two or more" class
There is no Canadian requirement of "typicality" as
required in the US (an analysis essentially involving a comparison
of various class members' claims and defences); and
There is no Canadian requirement of "predominance" as
required in the US (an analysis essentially involving an assessment
of whether common issues predominate over individual ones).
These differences, as well as trends in the decisions governing
how the procedural requirements are to be interpreted, have
resulted in a generally much lower certification standard in Canada
than in the US.
Therefore, for Canadian defendants, it is worth watching
developments in US class actions, but one cannot assume a US result
will carry the day in Canada.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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