Toronto Class Action Lawyers
Ontario Class Proceedings Lawyers | Class Action Claims | Class Action Defence
Gilbertson Davis LLP has lawyers with experience in acting for a diverse range of clients as both plaintiffs and defendants in domestic and cross-border class proceedings in Ontario and elsewhere.
Lawsuits commenced as class actions under the Ontario Class Proceedings Act, 1992 present unique challenges and opportunities for both plaintiffs and defendants (and their liability insurers).
On the one hand, class actions provide an effective means for numerous individuals with relatively modest claims to pursue collective legal remedies in court against well resourced and powerful defendants. Indeed, Ontario’s class action regime is driven by three primary goals that all act to benefit plaintiffs with legitimate claims: judicial economy, access to justice, and behaviour modification.
Yet, unmeritorious class actions also present an unfair burden on defendants, who face the time, management distraction, negative reputational consequences, and often very large defence costs that such proceedings frequently generate. Canadian and international insurers also face significant policy risks and exposures to class actions commenced in Ontario and elsewhere in Canada.
Class actions that have been certified by the Ontario courts in recent years include claims for and under:
- Condominium laws.
- Competition laws, including price-fixing conspiracies under s. 36 of the federal Competition Act.
- Franchise disputes, including under the Ontario Arthur Wishart Act.
- Institutional abuse.
- Products liability, including pharmaceuticals and medical devices.
- Professional negligence.
- Securities Misrepresentation in the primary and secondary markets, including under Parts XXIII and XXIII.1 of the Ontario Securities Act.
Although the factual and legal issues that are amendable to class actions are diverse, not all multi-party lawsuits are suitable for class treatment. The courts will not hesitate to deny class certification were appropriate.
However, under section 5 of the Class Proceedings Act, 1992, a class action must be certified (that is given permission by the court to proceed as a class action) if the following five-part test is met:
(a) The pleadings disclose a cause of action;
(b) There is an identifiable class of two or more persons that would be represented by the representative plaintiff;
(c) the claims of the class members raise common issues of fact or law;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) There is a representative plaintiff who, (i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
In many cases, the real battleground is on the third and fourth criterion: whether the claims raise common issues, and whether a class proceeding is otherwise the preferable procedure for their resolution by the courts. However, some class actions have been dismissed or stayed by the Ontario courts even prior to class certification, including because the pleadings have failed to disclose a cause of action against one or more defendants or on jurisdictional grounds.
In addition to the Firm’s longstanding insurance litigation practice, some of the lawyers at Gilbertson Davis LLP have extensive experience in acting for both plaintiffs and defendants in all aspects of class actions, including involving environmental claims, price-fixing, products liability and securities misrepresentation in the primary and secondary markets.