Canada: Class Actions: 2016 Recap & 2017 Forecast

Class actions are constantly evolving and always reinventing themselves, knowing only as limit the creativity of litigants within the perpetual evolution of the law and business practices.

2016 was no exception to the previous years and brought significant developments in class action law, fostered by the new Code of Civil Procedure ("CCP").

2016 – Interesting Developments and Statistics

The Supreme Court of Canada, the Court of Appeal of Quebec and the Superior Court of Quebec have rendered their share of interesting decisions in 2016. The rulings that more specifically drew our attention last year are the following:

  • The scope of the newly enacted right of appeal of a judgment authorizing a class action (Article 578 CCP)

During the spring of 2016, the Court of Appeal was seized with three motions for leave to appeal of judgments authorizing class actions under new Article 578 CCP. Given the novelty of the issue, a complete formation of the Court dealt with all these motions in a joint hearing.

On November 22, 2016, the Court of Appeal rendered three intertwined decisions construing the newly enacted right of appeal of judgments authorizing a class action.1 The Court found that leave to appeal of such a judgment could be granted when it bears a significant error in relation to the authorization criteria or in relation to the facts pertaining to their application, or when in presence of a flagrant jurisdictional issue.

In all three cases, the motion for leave to appeal of the judgment authorizing the class action was dismissed.

  • The obiter in Charles v. Boiron Canada Inc.2

In January 2015, the Superior Court denied to authorize a proposed class action in relation to alleged misleading representations regarding the efficiency of a homeopathic product aiming to relieve the effects of the flu.3

In October 2016, the Court of Appeal overruled that judgment and authorized the institution of a class action, notably in light of its recent analysis of the authorization criteria in Sibiga v. Fido Solutions Inc.4

However, it is the obiter from Justice Marie-France Bich, j.c.a. that struck our attention, in which heavy comments were made about the ineffectiveness of the authorization stage, the would-be generalized dissatisfaction of Quebec's class proceedings system, including how it is addressed by the parties and the courts. Something to reflect on in the New Year.

  • Multijurisdictional Class Actions

Multijurisdictional class actions remained part of the legal landscape in 2016. Notably, the Supreme Court of Canada in Endean v. British Columbia,5  recognized that superior court justices handling such cases could sit outside their home province jointly with their counterparts from other provinces, if in the best interests of justice and implemented guidelines in that regard.

Newly enacted Article 577 CCP offering greater protection to Quebec residents in multijurisdictional class actions was also addressed by the Superior Court to safeguard their rights and best interests in that context.6

Also, in other Canadian provinces, it is worth noting that the doctrine of abuse of process was revived to sanction and dismiss class actions raising the same issue filed successively by the same Class Counsel in numerous provinces. This could eventually raise interesting developments in Quebec.7

In terms of statistics, we listed 66 proposed class actions filed in 2016, largely involving Consumer Law, Product Liability, Competition & Antitrust and Securities claims, up to approximately 20% compared to the 54 proposed class actions we listed in 2015. These cases will certainly bring their load of further interesting developments in 2017 and the years to come.

Finally, in its last annual report filed on June 27, 2016, the Fonds d'aide aux actions collectives (Quebec's Class Action Assistance Fund) highlighted that, between April 1, 2015 and March 31, 2016, class actions having been authorized amounted to approximately 50% and that an important number of settlements occurred during that same period. 

Another interesting fact is that a significant increase of discontinuances filed in multijurisdictional proceedings in Quebec has been noticed by the Fonds d'aide aux actions collectives, an indication that Quebecers' rights can be more and more litigated in other jurisdictions.

2017 – On the Radar

Class actions will remain part of Quebec's and Canada's landscape in 2017. Given our courts' views about the broadness of the authorization criteria, the increase of class action specialized firms and the growing influence of the jurisdictions surrounding us, it is to be expected that the number of class actions to be instituted in 2017 will reach or exceed last year's level.

Amongst the anticipated developments to occur, we foresee the following:

  • The Unfriendly Substitution of the Plaintiff and a Potential Variation to the "First to File Rule" 

In January 2017, the Court of Appeal will jointly hear two distinct cases in which the Superior Court has, on one hand, ordered the substitution of the Plaintiff at the request of a third party and, on the other hand, granted carriage of a claim to a competing class action filed second and suspended the first claim having been filed.8

The rulings to be rendered by the Court of Appeal may change established practices in Quebec regarding the conduct of class proceedings by competing Class Counsel and may lead to further preliminary issues in that regard, or foster the intervention of third parties, or class members to take over the control of cases.

  • Settling Class Actions and the Burden Upon the Parties

The legal test to approve a settlement in class proceedings was not overhauled by the new Code of Civil Procedure.9 However, we are currently witnessing the imposition by the courts of further requirements and a heavier burden to demonstrate the justness and the reasonableness of the settlement, and that it is in the best interest of the class members.10

Should this trend continue, more sustained evidence at the stage of the approval of a settlement may be required along with a more rigorous demonstration of the fairness of the settlement for the class members.

  • Are the Corporations With More Than 50 Employees Coming to Town?

Since January 1, 2016, legal persons, partnerships and associations are entitled to class membership, regardless of their number of employees.11 Various class actions brought before 2016 have already been amended to include such entities in their class definition.

The increase of larger businesses as Plaintiff or class members should give rise to new types of claim that are not seeking a remedy for individuals, in addition to more significant quantum.

In addition to these developments, it is to be expected that the Articles of the new Code of Civil Procedure which have modified the law applicable to class actions will continue to be much written about in 2017.

Finally, practitioners should pay special attention to the Registre central des actions collectives (Quebec's Class Action Registry) and the impact of Article 573 CCP. Indeed, according to the Notice to the Members of the Bar from the Class Action Division of the Superior Court dated December 9, 2016,12 all pleadings (from plaintiffs and defendants) must now be entered into the Registry.

Considering the increasing number of class actions instituted year after year in Quebec, business managers need more than ever to be concerned about this reality in the conduct of their activities, the modification of their practices or the implementation of new processes or products.

Footnotes

1 Centrale des syndicats du Québec v. Allen, 2016 QCCA 1878, Énergie éolienne des Moulins, s.e.c. v. Labranche, 2016 QCCA 1879 (Langlois Lawyers was acting for the Appelants in this matter) and DuProprio inc. v. Fédération des chambres immobilières du Québec (FCIQ), 2016 QCCA 1880.

2 2016 QCCA 1716.

3 Charles v. Boiron Canada inc., 2015 QCCS 312.

4 2016 QCCA 1299.

5 2016 SCC 42.

6 Gagnon v. General Motors of Canada, 2016 QCCS 1421, Boehmer v. Bard Canada inc. 2016 QCCS 4702 et Conseil pour la protection des maladies v. Biomet Canada inc, 2016 QCCS 4574.

7 Turner v. Bell Mobility Inc., 2016 ABCA 188; Chatfield v. Bell Mobility Inc., 2016 SKQB 364; Hafichuk-Walkin et al v. BCE Inc et al, 2016 MBCA 32.

8 Cohen v. LG Chem Ltd., 2015 QCCS 6463 and Badamshin v. Panasonic Corporation, 2015 QCCS 6554 (Langlois Lawyers is acting for various defendants in these cases).

9 Article 590 CCP.

10 See as an example Leslie v. Agnico-Eagle Mines, 2016 ONSC 532.

11 Article 571 CCP.

12 http://www.tribunaux.qc.ca/mjq_en/c-superieure/avis/pdf/conso/2016-12-09-ClassActionDivision-NewCentralRegistry.pdf

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.