The Ontario Court of Appeal's April 14, 2015 decision in Keatley Surveying Ltd. v. Teranet Inc. is of interest not only to appellate practice, but also class action practice.
After certification was denied in the Superior Court, a representative plaintiff sought to significantly recast its case on appeal by redefining the class, revising and withdrawing proposed common issues, and dropping problematic pleas for injunctive relief. The Divisional Court certified the action, holding that although the motions judge properly dismissed the motion presented to her, the plaintiff's new case on appeal met the certification test.
Justice Sharpe, for a unanimous Court of Appeal, upheld the Divisional Court's decision. He clarified that a plaintiff's significantly amending its case on appeal is not an approach to be "endorsed". Nonetheless, so long as prejudice is not caused to defendants, and the nature of a case is not fundamentally changed, this may be permitted.
More detailed analysis of this decision can be found on Osler's Canadian Class Action Defence blog.
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