On Thursday, March 21, 2013, the Supreme Court of Canada dismissed the applications for leave to appeal two decisions of the Court of Appeal for Ontario with costs: Fulawka v. Bank of Nova Scotia and Fresco v. Canadian Imperial Bank of Commerce. Both cases are “off the clock” overtime class actions brought on behalf of certain bank employees in which it is alleged that their employers’ policies and practices for compensation of overtime work wrongfully denied them overtime pay under the Canada Labour Code, breached their employment contracts, and breached a duty of good faith owed to them by their employer.
British Columbia Court of Appeal provides potential litigants with guidance on leave requirements for a secondary market action
In a unanimous judgment released orally in November, 2012, the British Columbia Court of Appeal (the “Court of Appeal”) upheld the lower court decision in Round v. MacDonald, Dettwiler and Associates Ltd. (“Round”) issued in October 2011. Round was the first decision in British Columbia to address the test for leave to commence a secondary securities market action for negligent misrepresentation.
Federal Court of Appeal confirms availability of contractual waiver of class actions in favour of arbitration absent contrary statutory language
On February 14, 2013, the Federal Court of Appeal in Murphy v. Amway Canada Corp. affirmed the decision of the court below, staying a proposed class proceeding in light of a contractual arbitration clause and class action waiver. The decision re-affirms the principle espoused by the Supreme Court of Canada in Seidel v. TELUS Communications Inc. (“Seidel”) that, absent statutory language restricting or prohibiting either arbitration clauses or class action waivers, the courts should give effect to them.
Standard interpretation of OSA applied: secondary market purchasers have no cause of action for misrepresentation in a prospectus
In the recently released decision of Justice Perell in Tucci v. Smart Technologies, secondary market purchasers were excluded from a proposed plaintiff class seeking damages stemming from an alleged misrepresentation in a prospectus under s. 130(1) of the Ontario Securities Act (the “OSA”). This decision confirms the conventional interpretation of s. 130(1), which restricts the statutory cause of action to primary market purchasers.
As predicted, in the wake of Alberta’s Class Proceedings Act, proclaimed in force on April 1, 2004, the number and magnitude of class actions in Alberta have continued to surge. Recent amendments passed in 2010 to the certification regime, including in relation to multi-jurisdictional certifications and rendering Alberta an “opt-out” jurisdiction, have continued the trend towards easing the burden on class action plaintiffs in commencing and certifying class actions in Alberta.
This is exemplified by the recent filing of a class action by the Calgary-based JSS Barristers LLP firm on behalf of students whose personal information was allegedly misplaced by the Government of Canada student loans program through the loss of a computer hard drive containing this information. The commencement of this action was quickly reported by major news agencies in Alberta and will, no doubt, garner national attention. We expect that other law firms across the country will be launching similar actions.
Court of Appeal for Ontario Affirms Order Compelling Cross-Border Examination of Alleged Price-Fixing Chocolatier in U.S. Class Proceedings
In a decision which stands as an example of the practical approach taken by Canadian courts in balancing the rights of cross-border deponents with the principles of sovereignty and comity, the Court of Appeal for Ontario in Treat America Limited v. Leonidas (“Treat America”) has confirmed an order compelling the former CEO of a Canadian company to attend at a deposition in Canada to give evidence in a U.S. class action, despite the fact that the same former CEO is the target of a parallel criminal investigation in Canada.
In dismissing the appeal, Justice Feldman, for the Court, found that it would not infringe the appellant’s right against self-incrimination under the Canadian Charter of Rights and Freedoms (the “Charter”) nor would it be unduly burdensome for him to give the requested testimony. However, in light of the appellant’s submissions, Justice Feldman went on to apply additional protective conditions to the order to ensure that any potential prejudice resulting from the enforcement of the order would be minimized.
The plaintiff employees in the high-profile eHealth Ontario (“eHealth”) class action Perrenoud v. eHealth Ontario have cleared the certification hurdle for three of four claims brought against eHealth and Her Majesty the Queen in Right of Ontario (“Ontario”) as a result of eHealth’s decision last year to suspend its Performance Incentive Policy and cancel the employees’ performance awards and merit increases for fiscal years 2010/11 and 2011/12. In a decision released on November 26, 2012, Justice Perell of the Ontario Superior Court of Justice certified the plaintiffs’ claims against eHealth for breach of contract, but refused to certify the claim against Ontario for the tort of inducing breach of contract.
In a decision on a trial of the common issues – a rare occurrence in Ontario proportionate to the number of class actions or proposed class actions in existence – a plaintiff class of former college students succeeded against the George Brown College of Applied Arts and Technology (George Brown) on claims for negligent misrepresentation and breach of the Consumer Protection Act (CPA). Justice Belobaba of the Ontario Superior Court of Justice issued his oral decision from the bench following the conclusion of the common issues trial and released his written reasons on November 16, 2012.
While the route of appeal for decisions on carriage motions has been examined in other jurisdictions in Canada, the recently released reasons in Locking v. Armtec Infrastructure Inc. mark the first time that the Court of Appeal for Ontario has weighed in on the issue. Noting the absence of specific guidance on the matter in the Class Proceedings Act, 1992 (the CPA), the Court turned to the Courts of Justice Act (the CJA) and found that a motion judge’s order on a carriage motion is interlocutory and appeal lies to the Divisional Court, with leave.
Celestica Securities Class Action Saved From a Limitation Period Defence by Application of the "Special Circumstances" Doctrine
In a decision released on October 15, 2012 in the Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc. securities class action, Justice Perell held that the “special circumstances” doctrine can be applied by courts to extend the limitation period contained in section 138.14 of Ontario’s Securities Act (the “OSA” or the “Act”) which requires that a secondary market purchaser misrepresentation action under Part XXIII.1 of the OSA must be commenced within three (3) years of the alleged misrepresentation. In reaching this conclusion, Justice Perell has taken a broader view than previous rulings of the courts’ jurisdiction to relieve against the strict application of a limitation contained in the OSA.