36 LEXPERT MAGAZINE
|
SEPTEMBER 2016
rity of the jurisprudence. We're at the point
now, he says, where summary judgments in
class actions are going to the Court of Ap-
peal, where substantive legal questions can
get the attention they deserve. Ultimately,
what seems to be shaping up is a healthy
balance that augurs well for resolution of
the issues that still need clarification.
On the defence side of the ledger, courts
have increasingly questioned practices
that have until now benefitted plaintiffs.
ey have, for instance, given real teeth to
the leave provisions that govern the com-
mencement of statutory secondary-market
misrepresentation proceedings. ey've
also questioned the historic characteriza-
tion of product-liability cas-
es as "quintessential" class
actions, and set the stage
for a final ruling by the Supreme Court of
Canada on whether the Competition Act
and other statutes constitute a "complete
code" that govern civil claims arising from
breaches of their provisions.
Plaintiffs' lawyers, for their part, got a
boost from the Ontario Court of Appeal's
ruling in Ramdath v. George Brown Col-
lege, which gave the concept of "aggregate
damages" a definitive nod. "Ramdath is
probably one of the most important class-
action decisions ever because it confirms
that individual damages need not be prov-
en in certain cases," says Won Kim of Kim
Orr Barristers P.C. in Toronto, who repre-
sented the class.
Plaintiffs are also discovering fertile new
ground in a host of other areas. Privacy and
cybersecurity breach proceedings are flour-
ishing. Judges are coming down harder on
abuse and delay by defendants. e SCC is
poised to pronounce on national class ac-
tions. e administration of settlements
is achieving new levels of maturity. And
more and more cases are making their way
to trial, proving that many class actions are
in fact "manageable" and chipping away
at defence arguments that certification
should not be granted because of proce-
dural hurdles.
With all these countervailing trends
competing for permanence, there's cer-
tainly no paucity of controversy or issues
on the substantive side of class actions —
and the ingenuity of counsel on both sides
is thriving as they learn to work within,
and around, new legal frameworks — but
with all these developments, it may just be
that the Wild West era of Canadian class
actions has finally faded into the past.
As Wendy Berman of Cassels Brock
& Blackwell LLP puts it, "Our system has
definitely grown up."
LEAVES
WITH TEETH
For securities class actions, the elusive
standard for granting leave to commence
secondary-market misrepresentations has
long played head games with judges as well
as lawyers on both sides of the fence. Here,
perhaps, is where the jurisprudence has
seen the most dramatic change.
e SCC released two landmark securi-
ties class action decisions in 2015: erat-
echnologies v. 121851 Canada Inc., which
dealt with the leave test in Q uébec's Civil
Code, and the trilogy around CIBC v.
Green, which dealt with the correspond-
ing provision of Ontario's Securities Act.
As it turns out, the language in the Q ué-
bec Code is substantially the same as the
language that populates the corresponding
provisions in the common-law provinces.
e appellate decisions that preceded
these two cases set a very low standard for
meeting the key requirement of the leave
test that there be a reasonable possibility of
success for the plaintiff. Put simply, plain-
tiffs had only to show that they had "some
chance of success." e environment was
definitely plaintiff-friendly.
But the Supreme Court set a consider-
ably higher standard — one that created
a meaningful screening mechanism. e
threshold, the court concluded, was more
than a "speed bump": plaintiffs had to
provide credible evidence that withstood
reasoned consideration from the court to
demonstrate that they had a reasonable or
realistic chance of success.
Lower courts have since put real teeth
into the standard. Coffin v. Atlantic Power,
an Ontario Superior Court of Justice deci-
sion that considered eratechnologies be-
fore the SCC decided Green, set the stage
by confirming that courts would scrutinize
not only the pleadings, but the evidence, on
a leave application.
Another decision, Rahimi v. SouthGobi
Resources (also decided aer eratech-
nologies but before Green), established that
defendants could use statutory defences
on leave applications to considerable ef-
fect. In Rahimi, Justice Edward Belobaba
of the Ontario Superior Court of Justice
refused leave for the plaintiff to proceed
against individual corporate defendants.
He reasoned that these defendants had es-
tablished that there was no reasonable pos-
sibility that the plaintiffs could overcome
the Securities Act's "reasonable investiga-
| CLASS ACTIONS |
"We used to be all over the map, but
now we're getting closer to knowing
what's a blip and what's permanent.
We're not there yet, but we're getting
closer. What's gone for sure are the
days when we would spend days
arguing about the test for certification."
TRISTRAM MALLETT
>
OSLER, HOSKIN & HARCOURT LLP
