Lexpert Magazine

LEXPERT MAGAZINE | SEPTEMBER 2016 39 gie éolienne des Moulins c. Labranche; and Centrale des syndicats c. Allen. Counsel in each of these cases have been invited to submit a brief be- fore a special panel of three judges as to the criteria that should guide the Court of Appeal in allowing leave. "It is an open question," says Jean Saint-Onge in the Montréal office of Lavery, de Billy L.L.P., as to "whether the Court of Appeal will adopt a restrictive approach by limiting defendants' right of appeal only to cases where, as the plaintiffs are likely to argue, the judg- ment of the Superior Court would cause serious injustice if not appealed." Other changes to the Civil Code affect standing to commence a class action, no longer limited to companies with less than 50 employees, and multijurisdictional proceedings. plies to competition law. In Watson v. Bank of America, for example, the BCCA agreed that the Competition Act did not bar con- spiracy claims based on breaches of the Competition Act. But in Ontario, Justice Paul Perell disagreed. In Shah v. LG Chem, he opined that the BCCA had applied the wrong test in Watson. "Bringing some clarity to these issues is important because competition law is a very significant part of the class-action landscape," says Louis So- kolov of Sotos LLP in Toronto. Indeed, the effect of the "competition trilogy" released by the SCC in 2013 is emerging. "I see a lot of pent-up activity in competition class actions because of the trilogy's release," Woodin says. "We now see about 50 cases moving through the civil courts at the same pace. e meat of these cases is in a very fluid state and there's a lot of new law being generated." JURISDICTION FRICTION While class-action lawyers in common-law jurisdictions struggle to keep up with the changes, the Q uébec Bar is wrestling with the nuances of the new Code of Civil Pro- cedure, which came into force on January 1, 2016, and brought significant changes to the rules governing class actions in the province. Most importantly, defendants will for the first time have the right to seek leave to appeal a judgment granting autho- rization of a class action. Plaintiffs may continue to appeal as of right. At press time, defendants are seeking leave in three cases: DuProprio c. Fédéra- tion des chambres immobilières; Éner- Lawyers both in and outside la belle province will agree, any legislative guid- ance on multijurisdictional issues would be welcome. Some order to a chaotic situation has likely been restored by decisions from five appellate courts shutting down dupli- cative class actions as an abuse of process. "In the last year, counsel have been able to collaborate by mutual agreement to avoid multiple proceedings in multiple jurisdic- tions," Woodin says, citing the telecommu- nication cases relating to system access fees and the Volkswagen emission litigation. Even the top court has weighed in with a novel approach to multiple jurisdictions. In two cases, Parsons v. e Canadian Red Cross Society and Endean v. Canadian Red Cross Society, the SCC has granted leave to hear arguments on whether judges from one province can sit with judges from other provinces to hear arguments on multijuris- dictional class actions. "The upshot [of Eastern Platinum] is that motions for leave will result in a comprehensive analysis on the merits, forcing parties to lead with their best foot. That's not to say that the plaintiffs will have to prove their case, but they will have to show a realistic possibility that they will ultimately be successful." KEVIN O'BRIEN > OSLER, HOSKIN & HARCOURT LLP | CLASS ACTIONS | EMERGING CLASSES Securities and product liability have dominated the class-action space, but activity is on the rise in a number of emerging areas PRIVACY: A decade ago, class-action lawyers couldn't even be sure that privacy claims could be pressed in court. Now, with a number of decisions on the books, that is no longer a concern. "There are lots and lots of privacy cases," Woodin says. "We now have a tort that nobody was even sure existed and now it's going to be tested in all kinds of permutations and combinations and in all kinds of industries." Indeed, if US experience so far with the lawsuits arising out of the Ashley Madison disclosures is any indication, courts will have to confront some key procedural issues. In the US, for instance, a judge has excluded evidence collected from hacked or stolen documents — often the source of the complaint. "The judge made the point that publication or dissemination of the hacked documents could further harm class members," says Eliot Kolers of Stikeman Elliott LLP in Toronto. AUTO RECALLS: Auto recall claims, like those relating to Volkswagen's emission tests (just settled in the US but not in Canada), are equally in vogue, but there's some doubt as to the extent of their viability. "I don't believe there is a tenable case for class injuries based solely on recall and in the absence of injury or pecuniary loss," Woodin says. "There's no policy reason to sustain them, and in fact the possibility of class action mitigates against companies issuing recalls. There are big questions there." FRANCHISING: Franchising is another arena in which much remains unresolved. Some ques- tions may be answered when the Ontario Court of Appeal decides Trillium Motor World v. GM Canada. At trial, Justice Thomas McEwen found that GM Canada did not breach the franchise disclosure provi- sions in the Arthur Wishart Act and dismissed the class action by some 180 former dealers against the company. "The appeal involves several novel and highly significant issues, including the rights of franchises to restructure their franchisee network in the face of economic turmoil," says Ricci, whose partner Kent Thomson was co-counsel for GMCL.

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