Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1511709
14 www.lexpert.ca Feature Maniago explains that filings of all kinds in the province have tripled since 2020, jumping from approximately 20 per year to between 50 and 60. She thinks that the increase has come, in part, from lawyers looking for new business to replace work lost due to the province's imple- mentation of no-fault automobile insurance in 2021. BC is also seen as more plaintiff-friendly thanks to the modified-cost rule under s. 37 of the province's Class Proceedings Act. Under that rule, there are no cost consequences for whoever wins or loses outside of some limited exceptions for actions such as vexatious litiga- tion or abusive conduct by one of the parties. Sometimes, this is also called the no-cost rule, but Maniago says that isn't accurate. "We've had recent cases this year, confirmed at our Court of Appeal level, that yes, the regular cost regime [which is what exists in other provinces] does apply to pre-certifica- tion applications. If, for example, you bring an application and lose it, then there will be cost consequences to be paid." Considering how class actions will evolve in the province, Maniago wonders if judges will start imposing cost consequences on claims that fail to disclose a cause of action or if the government will rethink the province's "no-cost" status. While overall numbers might be down, some types of class actions are growing in popularity. Foreman says there seem to be more Crown liability cases on the plaintiff 's side, which are the type of class actions in the public sphere that are brought against a level of government and can involve situations such as people experiencing poor conditions during incarceration. His firm has been busy working on consum- er-protection and price-fixing class actions, specifically ones involving monopolistic practices, which are finally hitting some crit- ical milestones. One involving electrolytic and film capacitors, which are fundamental components found in electrical circuits, was certified in April and, so far, the parties have reached settlements of over $43 million. A case against the Ontario Energy Group, which inappropriately placed liens called Notices of Security Interest against properties of home- owners who purchased heating, ventilation, or cooling (HVAC) equipment, is in the process of paying out a settlement of $14.95 million. "Canada doesn't currently have a system that works well for monopoly misconduct. If you are a monopolist and you misconduct yourself, there isn't civil-litigation recourse that's terribly effective under our system. e Competition Act allows the regulatory body to take some action. But there are very, very limited options on the civil side. I think the evidence shows the dominant competi- tion-law problems today have a monopolist element to them. I believe there is [the] will to adapt our competition system to permit civil action in that space," says Foreman. Paré is also looking forward to how the law may evolve. He calls Quebec a "haven" for class actions in Canada. He notes that the province is a "pro-consumer jurisdiction" due to the Consumer Protection Act (CPA) and some presumptions that alleviate the burden for the plaintiff, especially the burden of prejudice. "If you can prove that there was a breach of [provisions regarding prohibited business practices under the CPA], you do not have to prove a prejudice, and you do not have to prove causation," he says. Similarly, the CPA provides against a presumption of knowledge, which means if a consumer purchases a defective product, the manufacturers and merchants can't say they didn't know about the defect as a defence. ey can only argue that the product wasn't defective, which has led to product liability cases becoming more popular in the province. With that background in mind, Paré is considering the effects of Bill 29, An Act to protect consumers from planned obsolescence and to promote the durability, repairability, and maintenance of goods. is Act was given royal assent on October 5 and is seen as a measure to strengthen the CPA. "ere's a tendency by our government to increase the protection for consumers, and so, obviously, that's one of the areas where we expect class actions in the coming year." "I think the evidence shows the dominant competition-law problems today have a monopolist element to them. I believe there is [the] will to adapt our competition system to permit civil action in that space" Jon Foreman FOREMAN & COMPANY "Judges have been more inclined to show more scrutiny and have a larger debate at the authorization stage and allow defendants to have a fuller defence at the authorization stage" François-David Paré NORTON ROSE FULBRIGHT CANADA LLP