As we returned to the office this week, we thought what better way to adjust to re-entry than by taking stock of what happened in the last year. The year 2013 was an important year for class actions with a number of important decisions from the Supreme Court and other decisions which reflect new and growing trends.
Most significant were the Supreme Court of Canada’s four decisions released in the last quarter of the year. Three decisions released together, now permit “indirect purchaser” class actions (Consumers Can Join Class Actions Over Price-Fixing) and affirm the “some basis in fact” test for certification. The Supreme Court also discussed the preferable procedure requirement at length in AIC Limited v. Fischer, 2013 SCC 69.
The issue of costs in Ontario was prominent with reasons that examined alternative ways to fund class actions (Third Party Funding Approved to Protect Class Action Plaintiffs Against Adverse Costs), creative awards tailored to reflect access to justice concerns (Costs in the Cause Where Success Divided Still Reflects Access to Justice Concerns) and outright discussion of whether or not Ontario should have a no costs regime (To Costs or Not to Costs – Is That the Question?). These decisions were released in the same year that common issues trial costs awards against plaintiffs and defendants were in issue (Successful Defendants Ordered to Bear Own Costs of Common Issues Trial and the costs award in Smith v. Inco was upheld, 2013 ONCA 724).
On the social justice end of the class actions spectrum, some class actions were certified while others were decisively dismissed (G20 Class Action Certification Motion Dismissed, The Perils of Poor Pleadings, “Sixties’ Scoop” Class Action Certified, and Self-Identified Problem Gamblers Class Action Denied Certification).
In product liability class actions, a claim was certified against DuPuy for hip replacement systems (Class Action Certified Against Manufacturer of Hip Replacement Systems) and denied against the manufacturers of washing machines (Class Action Regarding Whirlpool Washing Machines Dismissed but Possibility for Future Claims for Economic Loss for “Shoddy” Consumer Goods Left Open). Cross-border securities’ class actions encountered a new wrinkle (Silver v. IMAX - You Can’t have Your Cake and Eat It Too) and certain overtime claims were successfully certified and such certification upheld (see Rosen v. BMO Nesbitt Burns, 2013 ONSC 7762).
Class actions law crossed paths with bankruptcy and insolvency law and lost (When Class Actions and CCAA Proceedings Meet; Not Missing the Sino-Forest for the Trees: ONCA upholds auditor’s $117 million settlement despite objections from institutional investors over opt-out rights, and Sino-Forest Update: ONCA rules that institutional investors cannot appeal Ernst & Young settlement under the CPA).
Settlements, and in particular counsel fees, received scrutiny including at the appellate level (Counsel Fees Can be Based on Overall Value of Settlement, Not Just Amounts in a Settlement Fund, Cy Pres Recipient Must Not be or Appear to Be Connected to Class Counsel, When is a Settlement Not a Settlement?, Take-up Rate Relevant to Assessing Fair and Reasonable Class Counsel Fees, Who is Entitled to Unclaimed Trust Funds in a Class Action?).
Finally, various procedurally novel issues once again arose and were heard (Judges to Adjudicate Common Matters in Class Actions Collectively in One Location, Replacement of Carriage Counsel Should Occur Where There Is Unreasonable Delay) and older procedural topics received fresh comment (Debates Amongst Class Members Are a Permissible Form of Communication).
As we sally forth into the New Year, we expect that certain of these topics will continue to be prominent and look forward to keeping you informed about these developments.