April 15, 2019
In a decision released April 3, 2019, Ontario’s Divisional Court overturned a lower court decision that refused to certify some of the plaintiffs’ claims in a class action about whether junior hockey players are employees of their teams. The three-judge panel in Berg et al. v. Canadian Hockey League et al. cautioned judges against relying on the test set out in the Supreme Court of Canada’s decision in Hryniak to eliminate causes of action at the certification stage. In an article in Law Times, Shannon Kari reviews the decision, seeking input from class action experts about its implications. One of the lawyers Kari turns to for comment is Lauren Tomasich, a partner in the Osler Litigation Group whose practice focuses on class action defence.
Lauren explains that, at the certification stage, there will not be a full record before a judge – unlike a motion for summary judgment. “The Divisional Court is saying that this is not an opportunity to re-craft the pleadings,” she says.
She goes on to note that if a defendant is alleging over-pleading, then evidence will have to be presented “from a procedural perspective” about why specific causes of action should be excluded.
To learn more about the facts of the case and the Divisional Court’s decision, read Shannon Kari’s full article “Judges need to be careful in class action certifications” in the April 15, 2019 issue of Law Times.