A recent Ontario Superior Court decision amended the class definition of a certified Canadian class proceeding to carve out the settled claims of a parallel U.S. class action. This was done in the face of vehement arguments from Canadian class counsel that the U.S. settlement was inadequate and improvident. This decision provides a powerful demonstration of the risks associated with litigating a class action on behalf of a global class where there are parallel proceedings in a foreign jurisdiction. As a result of the amendment to the class definition, the Canadian class was reduced by 85 per cent.

Last week, the Ontario Court of Appeal certified Lipson v. Cassels Brock & Blackwell LLP as a class proceeding, reversing a lower court decision dismissing the entire case on the basis that the proposed class’ limitation period had expired.

This month, Ontario Superior Court Justice Paul Perell certified a class proceeding on behalf of customers of the expedia.ca web site alleging that Expedia Inc. wrongfully charged service fees for which it was not entitled. Perell’s reasons emphasized the procedural nature of the certification motion which is designed to ensure an action conforms to the requirements set out in the Class Proceedings Act. This motion is not a forum to debate the merits or the utility of the action, and the certification judge’s role as gatekeeper is limited to a juridical exercise in screening claims that are not appropriate for class action treatment.

This month, the Ontario Court of Appeal circumscribed the discretion of class action case management judges to conditionally certify a class action in the absence of a statement of claim that discloses a cause of action. The appeal decision places new limits on the case management judge to amend aspects of an otherwise viable claim, introducing the potential for even more delay and cost for the motion for certification of a class proceeding.

The impact of the Ontario Court of Appeal’s decision in Sharma v. Timminco has now been seen in three cases in which lower courts have struggled to manage the practical consequences that flow from it. Its application to a variety of factual situations has demonstrated it creates an imbalanced rigidity in the treatment of secondary market misrepresentation claims brought by investors in Ontario.

A recent decision from Ontario Court of Appeal Chief Justice Warren Winkler dramatically alters the landscape of class proceedings in this province by restoring a careful balance between plaintiffs and defendants with respect to costs awards.

Last March, the Ontario Court of Appeal provided guidance on the proper territorial sphere of the Ontario Securities Act, holding that an issuer whose securities are not publicly traded in Canada can be subject to a statutory cause of action by purchasers in the Canadian secondary market. This landmark decision accords the objectives of the Securities Act as well as the reasonable expectations of Ontario residents who purchase securities in Ontario. It also sends a strong message to issuers operating in the province that they cannot avoid liability in this province by listing their securities abroad.

Last August, Ontario Superior Court Justice Katherine M. van Rensburg narrowed the scope of the Court of Appeal for Ontario’s decision in Sharma v. Timminco Ltd. by affirming the court’s authority to grant leave nunc pro tunc, or with retroactive effect, to the plaintiffs’ secondary market disclosure claims in order to avoid the expiry of a limitation period.

On Aug. 2, the Supreme Court of Canada denied the plaintiffs in Sharma v. Timminco Ltd. leave to appeal the landmark decision of the Ontario Court of Appeal, imposing a stringent deadline on the right of shareholders to obtain damages from companies that misrepresent their financial results.

Historically, the Crown was immune from tortious liability. Modern legislation exposed the Crown to liability in tort, like any other citizen.