The arrival of 2024 marked the end of a year filled with class action activity. Our Litigation group in Toronto has prepared a list of some of the more notable cases (and other developments) of 2023, with a focus on Ontario. They are grouped into the following four categories: procedure; competition; securities; and product liability.

Here are our top 10 picks:

Procedure

1. Ontario Court Considers New Preferable Procedure Test – In Banman v. Ontario, 2023 ONSC 6187, the Ontario Superior Court considered the new preferable procedure criterion of the certification test under the amended Class Proceedings Act in certifying a systemic negligence and institutional abuse case. The decision represents the first interpretation and application by the Court of the new preferable procedure test and confirms the legislative intent behind the superior predominance criteria was to create a more rigorous certification test in Ontario. See our post for a review of the decision and some key takeaways.

2. Mandatory arbitration clauses in standard form contracts found enforceable by British Columbia Court of Appeal – In Williams v. Amazon com Inc., 2023 BCCA 314 and Petty v. Niantic Inc., 2023 BCCA 315 the British Columbia Court of Appeal upheld the partial stays of proposed class actions finding that the mandatory arbitration clauses contained within electronic standard form contracts were valid and enforceable. In both cases, the plaintiffs opposed the stay on the basis that, among other things, the arbitration clauses were unconscionable and/or contrary to public policy. The British Columbia Court of Appeal held that there were insufficient grounds to support a finding that the arbitration clauses were unconscionable and/or contrary to public policy. The decisions suggest that in the absence of clear legislative intention to limit the application of mandatory arbitration clauses to consumer claims, such clauses may be enforceable, even in standard form contracts, provided the arbitration process is accessible and offers a viable means for resolving disputes. The plaintiff in Williams has sought leave to appeal to the Supreme Court of Canada.

3. Ontario Court reinforces that section 29.1 of the Class Proceedings Act, 1992 is mandatory – In Tataryn v. Diamond & Diamond, 2023 ONSC 6165 the Ontario Superior Court of Justice dismissed a proposed class action, reinforcing that the language of s. 29.1 is mandatory and that an action must be dismissed if it is clear that none of the enumerated steps are taken in time. The Court also confirmed that s. 29.1 is a statutory provision in which there is a substantial public interest and cannot be waived if defendants bring pre-certification motions and wait a substantial time in advance of bringing a motion for dismissal for delay. The Court also found that a “phoenix order” as was granted in D’Haene v. BMV Canada Inc., 2022 ONSC 5973, where the action was dismissed but leave was granted to start a new action, would be contrary to the policy goal of s. 29.1 and that resurrecting an identical case after a dismissal for delay could constitute an abuse of process in certain circumstances.

4. Ontario Court provides guidance on defendants’ rights and role in motion to approve third-party funding – In Gebien v. Apotex, 2023 ONSC 4651, the plaintiff sought to approve a third-party funding agreement in a putative class action against opioid manufacturers and distributors. The defendants raised several objections to the agreement, including that the agreement did not effectively protect the defendants’ confidentiality rights. The Court provided the plaintiff with an opportunity to justify the existing provisions of the agreement or submit a proposal that would resolve the defendants’ objections, highlighting that a defendant may make objections to the approval of an agreement where it would affect the defendants’ legitimate interests.

Competition

5. Courts must do more than “a rubber-stamping and symbolic review of proposed class actions at the certification stage” – In Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, the Federal Court of Appeal upheld the lower court’s refusal to certify a proposed class action involving allegations that the defendants had breached the Competition Act, R.S.C. 1985, c. C-34 by conspiring through direct communications in private meetings and through public statements – or “signalling” – to each other, to suppress the global supply of dynamic random-access memory chips and increase prices. This decision highlights the increased willingness of courts to exercise their gatekeeper function and scrutinize proposed causes of action and pleadings in determining whether proposed class actions should move forward. See our post for a review of the decision and some key takeaways. The plaintiffs have filed an application for leave to appeal to the Supreme Court of Canada.

6. Ontario Court denies certification of proposed class action alleging price-fixing conspiracy by canned tuna companies – In Lilleyman v. Bumblebee Foods LLC, 2023 ONSC 4408, the Ontario Superior Court of Justice dismissed the motion for certification of a proposed competition class action commenced in Ontario involving allegations of price fixing of canned tuna. The representative plaintiff had tried to compare and draw parallels to the conspiracy class action that was commenced in the U.S. against three leading tuna producers there, and which entailed the CEO of one of the producers being convicted and certain employees of tuna producers entering guilty pleas. Relying on industry evidence tendered by the defendants concerning the differences between the U.S. and Canadian tuna markets, the Ontario Court held that the guilty pleas in the U.S. did not provide some basis in fact for the existence of an alleged conspiracy in Canada. The plaintiffs have appealed the decision.

7. Proposed class action involving Amazon has no prospect of success, says the Federal Court – In Difederico v. Amazon.com Inc., 2023 FC 1156 the Federal Court refused to certify a proposed class action involving allegations that a collection of Amazon entities had breached sections 45 and 46 of the Competition Act, S.C. 1985, c. C-34, which establish indictable criminal offences for conspiring, agreeing, or arranging certain anti-competitive conduct. See our post for a review of the decision, which is a further example of courts exercising their gate-keeping function at the certification stage to weed out claims that have no prospect of success. The plaintiffs have sought leave to appeal to the Supreme Court of Canada.

Securities

8. “Material Change” Under the Securities Act? Ontario Court of Appeal provides guidance –The Court of Appeal for Ontario released a pair of decisions, Markowich v. Lundin Mining Corporation, 2023 ONCA 359 (“Lundin”) and Peters v. SNC-Lavalin Group Inc., 2023 ONCA 360 (“SNC”) that provide guidance on the requirement to disclose a “material change” under the Ontario Securities Act. The decisions underscore that the test for a “material change” under the Securities Act consists of two inquiries: i) whether there has been a change in risk in an organization’s business, operations, or capital; and ii) if so, whether it would reasonably be expected to have a significant effect on the marketplace of the issuer’s securities. Leave to appeal to the Supreme Court of Canada has been sought in Lundin, but not in SNC.

Product Liability

9. British Columbia Court dismisses proposed class action brought by rantidine users in Canada finding the “plaintiff has failed to raise a bona fide triable issue regarding injury due to the ingestion and/or purchase of rantidine” – In Dussiaume v. Sandoz Canada Inc., 2023 BCSC 795, several pharmaceutical companies successfully defeated certification and obtained summary dismissal of a proposed pharmaceutical product liability class action, arguing that the plaintiff’s claims of alleged increased risk of contracting cancer should be summarily dismissed because there is no basis in evidence or law to support such claims. The decision underscores the willingness of courts to exercise their gatekeeper function and how lack of present injuries and reliable scientific evidence could prove fatal to advancing plaintiffs’ claims.

10. Ontario Introduces a New Consumer Protection Act – On December 6, 2023, Ontario’s new Consumer Protection Act, 2023 (the “New CPA”) received Royal Assent, with effect on proclamation (not yet received). The New CPA alters the regulatory landscape for many businesses operating in the province, and potentially enhances their class action risk. We are monitoring the implementation of this legislation.

[View source.]