Class actions remain steady - Lexpert

Céline Legendre, Craig Lockwood

Nov 27, 2020

Osler partners Céline Légendre and Craig Lockwood tell Lexpert that more class action lawsuits could be on the horizon in a variety of sectors. In her article, author Elizabeth Raymer explores the class action landscape in Canada, including the impact of the COVID-19 pandemic. Céline, a partner in Osler’s Litigation Group who specializes in Class Action Defence, says that there has been a rise in class actions over the past couple of years, but it’s been “steady in the past few months.” She says the targets of class actions “will change depending on the situation,” such as COVID-19-related suits.

“People are more in tune as to what can be accomplished in a class action . . . in a civil context, on behalf of a group,” Céline tells Lexpert. “That’s starting to be more prevalent as well.”

Craig, a partner in Osler’s Litigation Group who specializes in Class Action Defence, says he expects to see more and more privacy class actions in the common law provinces.

“Particularly, you’ve got the tort of intrusion upon seclusion, and the law is still a little unsettled around that,” Craig tells Lexpert. “So I think you’ll see a lot of activity around the parameters” of that and whether claims “can be brought on a class-wide basis and the issue of damages.”

Craig also says that, on the securities side, in the past five-to-seven years, “all the provinces have adjusted their securities acts to allow for secondary market misrepresentation, and it may be assumed that clients have relied on a misstatement in the initial public document and can deem reliance on secondary market provisions.” As a result, “almost any time there’s a restatement, it’s likely that you’re going to see a securities class action follow immediately” after.

Craig also discusses the predominance requirement to certify a class action. He tells Lexpert that he doesn’t “know [that] that’s necessarily the case” that plaintiffs will be loath to bring actions in Ontario after recent amendments to Ontario’s Class Proceedings Act came into force that require common issues predominate over individual ones.

“But at this stage, very rarely do you see a class action in Canada that’s not national,” meaning that counsel from different firms in various provinces are co-ordinating and liaising with each other. “So, I feel the amendments to the Ontario act may not be as big as people think.”

Looking ahead, both Craig and Céline agree that we haven’t yet seen the full effects of the COVID-19 pandemic on the class action landscape.

“The reality is, we haven’t seen the . . . knock-on effects and economic repercussions” of the pandemic, Craig tells Lexpert.

“Almost every sector is dramatically impacted by these things, [and] the class action regime lends itself to adjudication of a lot of these issues.”

Céline says that as consumers increase their use of apps and online platforms, she expects to see more consumer privacy class actions coming.

“Whether it be an app [or other technology], it just prompts that many more questions that people will have to resolve through class actions,” she says.

For more information, read author Elizabeth Raymer’s article “Class actions remain steady” in Lexpert.