Kirk Baert

Kirk Baert

Kirk M. Baert is is a partner at Koskie Minsky LLP in Toronto and a member of the firm’s executive committee. His practice focuses on plaintiff-side class actions. He can be reached at kbaert@kmlaw.ca.

Column: Class Acts
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgLast spring, the Supreme Court of Canada released a decision adopting a liberal approach to the certification of common issues in class proceedings. Because this case arose out of Quebec, it did not receive widespread attention in the rest of Canada. However, it would be a mistake to let the importance of this case remain un- or under-appreciated.
Monday, 27 October 2014 08:00

De novo certification hearings on appeal

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn August, the Ontario Divisional Court released its decision in Sherry Good v. Toronto Police Services Board, in which it found the elements required for certification had been met on appeal, reversing an earlier certification refusal in these G-20 class actions. This is despite the fact “[t]he proposed class action, as presented on this appeal, was markedly different from the proposed class action that was considered by the motion judge.”
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgLast month, the Supreme Court of Canada released a decision in which it held that a representative plaintiff in a class action need not have a cause of action against each named defendant, as long as members of the class held a cause of action against each named defendant.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgThe plaintiff’s securities class action bar takes on substantial risk when they bring a claim seeking leave under Part XXIII.1 of the Ontario Securities Act. Often, all counsel knows is there has been some wrongdoing at a company that has led to a dramatic decline in the price of a share. The diligent counsel reviews the company’s historic public disclosure, wherein the company’s health has been, without fail, viewed through rose-coloured glasses. Once the corrective disclosure occurs, the security’s value tumbles down to earth and investors are left holding the bag.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgThe Class Proceedings Act,1992 was intended to promote access to justice. To do so, it incentivizes lawyers to undertake class actions with contingency fee agreements and the availability of premium fee awards. However, if class counsel are not adequately and consistently provided an amount that fairly compensates them for the seriousness of the risks undertaken over the course of many years, the purpose of the legislation as set out by the framers of the act will not be achieved.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgLast month, Ontario Superior Court Justice Paul Perell varied class counsel’s recommendation to distribute a cy-près award in its entirety to the Access to Justice Fund operated by the Law Foundation of Ontario. Instead, as a result of a University of Ottawa faculty member’s request to the court, 20 per cent of this award was donated to the Telfer School of Management at the University of Ottawa.
Monday, 28 April 2014 08:00

Is the docket dead for class counsel?

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgA 13-paragraph decision of Justice Edward Belobaba in Cannon v. Funds for Canada Foundation may kill the docket for class counsel in Ontario.
Monday, 24 March 2014 09:15

Wal-Mart coming to Canada. Sorry, no.

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn Wal-Mart Stores Inc. v. Dukes, the Supreme Court of the United States held that in order for class certification to be granted, judges must undertake a “rigorous analysis.” Of course, judicial analysis should be rigorous so we know the court must have meant something else. It turns out it did.
Monday, 24 February 2014 08:00

Court of Appeal rights its own wrong

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn a stunning reversal, a five-judge panel of the Ontario Court of Appeal reversed its decision in Sharma v. Timminco Ltd. where it just recently held that the three-year limitation period for bringing a statutory claim for misrepresentation in respect of shares trading in the secondary market could not be suspended until a court had granted leave to commence the claim.
Monday, 27 January 2014 08:00

The Hollick approach is here to stay

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn October 2001, the Supreme Court of Canada advocated a liberal and flexible construction of the Ontario Class Proceedings Act, 1992 in Hollick v. Toronto (City). In particular, Chief Justice Beverley McLachlin, on behalf of the court, held the CPA is to be “construed generously” in a manner that gives “full effect to the benefits foreseen by the drafters” — the Hollick approach.
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