On 24 February 2014, the Ontario Divisional Court allowed the certification of a class action on the basis that the need to ensure that the plaintiffs received access to justice outweighed the difficulties that their many individual issues could produce for a trial: Cavanaugh v Grenville Christian College, 2014 ONSC 290 [Cavanaugh].

This case is the latest in a body of jurisprudence that is bringing clarity to the proper balancing of considerations that courts should make under the preferability analysis for class action certification—the analysis for whether a case should proceed as a class action or as a series of individual actions.

The final act in an eleven year long class proceeding has concluded with Smith v Inco Ltd, 2013 ONCA 724.  The defendant Inco had successfully defended itself against the claim for damages in the class action.  Here, it sought to recover legal costs of over $5 million. Inco was awarded a still substantial, though smaller award of $1.76 million.

On this appeal, the main respondent was the Law Foundation of Ontario, an agency jointly sponsored by the Ontario Government and the Law Society.  One of its functions is to support deserving class actions by paying for disbursements, and the cost award in the event that the class loses.   Under Ontario law, the individual named plaintiff would be liable for millions of dollars in costs unless somebody else steps forward to pick up the bill.   The Court of Appeal affirmed the costs award of the trial judge, and one of the factors considered was the precarious financial condition of the Law Foundation.  Read the rest of this entry »

Last Wednesday, the United States Supreme Court heard oral arguments for Halliburton Co. v. Erica P. John Fund, thereby revisiting the contentious “fraud-on-the-market” principle adopted in the 1988 case of Basic Inc. v. Levinson, 485 US 224 (1988). The principle works as follows: open and developed securities markets are efficient and all relevant information about a particular security is reflected in its price; investors buy these securities relying on the integrity of this price; material misstatements made by the issuer distort this price; and therefore, investors can be deemed to have relied on the misstatement because they relied on the price. Undoubtedly, this is something of a legal fiction, as markets do not always incorporate relevant information in real time and investors buy securities for any number of reasons—often precisely because they believe the market is not accurately valuing a security. However, fraud-on-the-market is an indispensable construct in certifying securities fraud classes in the United States and there are significant consequences to overruling it. Read the rest of this entry »

On February 21, 2014, the Ontario Superior Court of Justice released its decision regarding remedies in Canada (Commissioner of Competition) v Chatr Wireless Inc., 2014 ONSC 1146 [Chatr]. This case stemmed from allegations by the Commissioner of Competition against Chatr Wireless Inc. (“Chatr Wireless”) in relation to claims made by the telecommunications company about it having fewer dropped calls than its competitors.

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In R v Babos, 2014 SCC 16 [Babos], the issue was whether the Crown misconduct, in the form of intimidation and threats, was severe enough to warrant a stay of proceedings for the accused. A 6-1 majority of the Supreme Court of Canada (SCC) has held that prosecutorial misconduct or abuse of process must be particularly egregious to warrant a stay of proceedings when the criminal charges are serious. In this case, a prosecutor repeatedly threatening to have extra charges brought if the accused did not plead guilty to the charges as laid was not enough to meet the high threshold for abuse of process warranting a stay of proceedings, as it was not found to outweigh society’s interest in a trial. Read the rest of this entry »

Ajitpal Singh Sekhon attempted to drive a pickup truck across the border from Washington State into British Columbia on January 25, 2005. He was flagged for secondary inspection by Canadian customs officials, which led to the discovery of 50 one-kilogram bricks of cocaine – valued over $1.5 million – hidden inside a secret compartment in the pickup truck. After Mr. Sekhon was detained and advised of his rights, he produced a key fob from his pocket. The police later found out that when the key fob’s buttons were pressed in a particular sequence, it opened and closed the hidden compartment.

Mr. Sekhon claimed that he did not know there was cocaine in the vehicle – he had merely agreed to drive his friend’s truck back to British Columbia. Thus, he argued, he lacked the requisite knowledge to be found guilty of importing cocaine and possessing cocaine for the purpose of trafficking. Read the rest of this entry »

On 20 February 2014, the Federal Court of Canada (FCC) ordered (2014 FC 161) that Teksavvy Solutions Inc. (Teksavvy), an Internet Service Provider, must release the names and addresses of 2,000 customers who allegedly downloaded copyrighted films. Voltage Pictures LLC (Voltage), a film production company that produced the Oscar-winning film The Hurt Locker, sought this order on a motion to the FCC. Arguing that the customers who are alleged to have downloaded the films are prima facie liable under the Copyright Act for infringement, Voltage made this motion to the FCC with the intention of pursuing claims against these customers once the information is released.

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Since 2001 there has been considerable turmoil at the Supreme Court of Canada (“SCC”) surrounding collective bargaining rights under the Charter. During this period, two significant decisions have appeared to shift the Court towards recognizing a constitutional right to collective bargaining. As a result, a trial judge in Saskatchewan took the audacious step of assuming that the SCC would no longer abide by its earlier position that the Charter does not protect the right to strike. The Court of Appeal overruled him in R v Saskatchewan Federation of Labour, 2013 SKCA 43 [Saskatchewan Federation], taking a principled stand that the lower court ruling violated the doctrine of stare decisis.

The SCC has given leave to appeal in Saskatchewan Federation, and its decision may push the boundaries of collective bargaining rights even further. Conversely, the Court may vacillate and add to the confusion that has been created by its latest decisions in this area. Regardless of the outcome of the appeal, Saskatchewan Federation is an excellent piece of judicial writing and worth reading for its own sake. Read the rest of this entry »

Google, as part of a settlement with European competition regulators, has conceded some ground in the European search market by agreeing to display competitor results in its search results. These concessions will be the most significant that Google has made in response to an antitrust inquiry to date. The proposed settlement still requires approval from the European Commission (the “Commission”). However, it has nonetheless done little to quell the concerns voiced by Google’s competitors that sparked the inquiry.

The inquiry investigated the extent to which, if any, Google abused its ninety percent market share in Europe. As part of the settlement, Google will avoid EU fines and any finding of discrimination against competing sites, much in the same way it did a year earlier following a settlement with the United States Federal Trade Commission (the “FTC”).

In Kozel v The Personal Insurance Company, 2014 ONCA 130 [Kozel], a decision released on February 19, 2014, the Ontario Court of Appeal considered the scope of relief from forfeiture pursuant to section 98 of the Courts of Justice Act, RSO 1990, c C.43, in the context of an automobile insurance claim.

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