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Class Action Appeals Headed to the SCC in 2019

6 minute read

It is an exciting time for the class actions bar with so many appeals in class proceedings being heard before the Supreme Court of Canada. The Supreme Court receives hundreds of leave applications a year, and approximately 60 – 70 appeals are heard each year. According to the Supreme Court of Canada’s Year in Review, in 2018, the Supreme Court received 525 applications for leave, and heard 66 appeals.

Since the year began, Canada’s highest court has pronounced on five class action cases including TELUS Communications Inc. v Wellman,1 J.W. v Canada (Attorney General),L’Oratoire Saint-Joseph du Mont-Royal v J.J.,Pioneer Corp. v Godfrey,4 and most recently in Keatley Surveying Ltd. v Teranet Inc.5 We provided commentary on the Supreme Court’s decision in the L’Oratoire class action here.

As we enter the final quarter of 2019, here are the class proceedings headed to the Supreme Court before the years’ end.

1688782 Ontario v Maple Leaf Foods Inc. – Scheduled for October 15, 2019

In this class action, Lerners lawyers act on behalf of the class, Mr. Sub franchisees, in this class proceeding against the defendant Maple Leaf Foods. The plaintiffs were granted leave to appeal a judgment6 of the Ontario Court of Appeal in this class action involving business losses and reputational harm suffered by Mr. Sub franchisees in the wake of the 2008 Maple Leaf Foods listeriosis outbreak. The class action was initially certified7 by Leitch J. and the defendant’s summary judgment motion8 was dismissed and summary judgment was granted in favour of the class with respect to two common issues regarding the duty of care.

The core issue at the heart of the appeal is whether a manufacturer of products intended for human consumption can escape liability to a class of known and proximate franchisees for reasonably foreseeable reputational harm and economic losses caused by the manufacturer’s negligent supply of contaminated, dangerous products into the marketplace. The Court will be asked to address and determine the proper legal basis on which pure economic loss is recoverable in such cases, how damages to a person or entity’s reputation ought to be characterized, and to determine the standard of review of a court’s conclusion when it finds that a defendant owes a duty of care to a plaintiff.

Uber Technologies et al. v David Heller - Scheduled for November 6, 2019

In this class action, the defendants, Uber Technologies Inc., Uber Canada Inc., Uber B.V., and Rasier Operations B.V. were granted leave to appeal a judgment9 of the Ontario Court of Appeal in this class action involving class members who provided delivery services and or personal transaction services using various Uber Apps alleging that they were employees of Uber and thus entitled to benefits under Ontario’s Employment Standards Act, SO 2000, C. 41. A provision in Uber’s licensing agreement provides that it is governed by the law of the Netherlands and includes an arbitration clause stating that disputes connected to the agreement shall be resolved by arbitration in Amsterdam. The Court will be asked to determine whether the arbitration clause in the Uber driver service agreement that requires all claims to be arbitrated in the Netherlands is valid and enforceable.

Volkswagen Group Canada Inc. et al. v Association québécoise de lutte contre la pollution atmosphérique et al. - Scheduled for November 13, 2019

In this class action, the defendants, automobile manufacturers Volkswagen Group Canada Inc. et al. and Audi Canada Inc. et al., were granted leave to appeal a judgment10 of the Quebec Court of Appeal in this class action involving compensation for residents of the province of Quebec for environmental consequences of the use of software allowing the defendants to falsify the results of emissions tests. The class action was authorized in part, authorizing one for a claim for punitive damages. The Court will be asked to determine whether a class action can be authorized under article 575 of Quebec’s Code of Civil Procedure in order to claim punitive damages on this basis.

Atlantic Lottery Corporation Inc. et al. v Douglas Babstock et al. - Scheduled for December 3, 2019

In this class action, the defendants, the Atlantic Lottery Corporation et al, were granted leave to appeal a judgment11 of the Court of Appeal of Newfoundland and Labrador in this class action involving allegations of harm by video lottery terminals which offered line games similar to slot machines. The class action was certified. On appeal, a majority of the Court of Appeal struck causes of actions, and concluded that disgorgement is an uncertain area of law. The Court will be asked to determine whether a new cause of action should be recognized entitling a plaintiff to a disgorgement remedy upon proof of a breach of a duty of care in negligence, absent damage, injury or loss.

Desjardins Financial Services Firm Inc. et al. v Ronald Asselin - Scheduled for December 5, 2019

In this class action, the defendants, Desjardins Financial Services Firm Inc. et al., were granted leave to appeal the judgment12 of the Quebec Court of Appeal certifying this class action involving contractual civil liability and extra contractual civil liability against the defendants. The class alleged that the defendants encouraged investments that were represented to be safe even though they yielded no return, that it had designed and managed the investments in a reckless and incompetent manner, and that it had used inappropriate financial strategies. The Court will be asked to determine whether this financial services class action should proceed.

Conclusion

While a majority of the appeals before Canada’s highest court tend to involve criminal proceedings, seeing so many class proceedings cases argued before the Supreme Court may be demonstrative of the increasing presence of class proceedings in Canada.


[1] TELUS Communications Inc. v Wellman, 2019 SCC 19.

[2] J.W. v Canada (Attorney General), 2019 SCC 20.

[3] L’Oratoire Saint-Joseph Du Mont-Royal v J.J., 2019 SCC 35.

[4] Pioneer Corp. v Godfrey, 2019 SCC 42.

[5] Keatley Surveying Ltd. v Teranet Inc., 2019 SCC 43.

[6] 1688782 Ontario Inc. v Maple Leaf Foods, 2018 ONCA 407.

[7] 1688782 Ontario Inc. v Maple Leaf Foods Inc., 2016 ONSC 4233.

[8] 1688782 Ontario Inc. v Maple Leaf Foods Inc., 2016 ONSC 3368.

[9] Heller v Uber Technologies Inc., 2019 ONCA 1.

[10] Volkswagen Group Canada Inc. c Québec Air Pollution Control Association, 2018 QCCA 1034.

[11]  Atlantic Lottery Corporation Inc.-Société des loteries de l’Atlantique v Babstock, 2018 NLCA 71.

[12] Asselin c Desjardins Cabinet de services financiers inc., 2017 QCCA 1673.

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