Regular readers of our blog will recall the proposed class
action in Evans v Bank of Nova Scotia in which a rogue employee
used confidential information that he accessed while employed by a
bank to defraud a number of customers. The defrauded customers sued
the employee as well as the Bank, notwithstanding that the Bank
immediately responded to the alleged criminal activity of its
employee. The action was initially certified, meaning that it could
proceed as a class action (see our initial update on the
The Bank sought leave to appeal to the Divisional Court the
decision to certify the class. The Bank challenged the
certification on several grounds, primarily on the basis of alleged
errors made by the certification judge. However, the Divisional
Court refused to grant leave to the Bank, a necessary preliminary
step in having the appeal heard. The Divisional Court found that it
could not find good reason to doubt the correctness of the order
certifying the class, and would therefore not grant leave.
The Bank may seek to have the decision not to grant leave
reviewed by the Ontario Court of Appeal. However, the general rule
is that decisions to grant leave may not be appealed, except in a
very limited number of cases. Barring an extraordinary decision by
the Court of Appeal, the heavy onus placed upon appellants in such
circumstances means that it appears likely that Evans will proceed
as a class action, following in the footsteps of other major class
actions targeted at employers.
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