Important Canadian Class Action Appeal Decisions of 2013

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There were a number of important appeal decisions in Canadian class action cases in 2013 in which determined a variety of interesting issues in securities law, competition law, consumer protection actions and the problem of individual (vs. common) issues.

First, in the securities law realm, the Supreme Court rendered its much-anticipated decision in AIC Limited v. Fischer, the mutual fund “market timing” case, settling the issue that private class actions can co-exist with securities regulatory enforcement proceedings and that settlement of a regulatory proceeding does not preclude certification of a class action on behalf of the same class of investors who received compensation through the regulatory process. (See previous comments here and here).

In the area of competition law, the Supreme Court recognized the right of indirect purchasers to assert actions based on alleged anti-competitive conduct while confirming its rejection of the “passing on” defence in this context in the renowned trilogy of decisions which set out the framework for indirect purchaser class actions in Canada – see: Pro-Sys Consultants Ltd. v. Microsoft Corporation, Sun-Rype Products Limited v. Archer Daniels Midland Company, and Infineon Technologies AG v. Option consommateurs. (See previous reports here and here).

As reported previously here, the B.C. Court of Appeal upheld the denial of certification of a proposed class action involving routine strip searches at a Vancouver city jail. Thorburn v. British Columbia (Public Safety and Solicitor General) illustrates the difficulty of certification in cases that require an individual inquiry into the facts and circumstances unique to each class member.  In this regard, the decision is similar to the Ontario Court of Appeal’s denial of certification on behalf of so-called “problem gamblers” in Dennis v. Ontario Lottery and Gaming Corporation, a case relied upon in Thorburn and commented on previously here.

In a decision of great importance to federally-regulated entities such as banks, airlines and navigation and shipping companies, the B.C. Court of Appeal in Unlu v. Lufthansa et al ruled that a provincial consumer protection statute applies to airlines in a putative class action alleging deceptive practices by way of improperly identifying as taxes the fuel surcharge on airline tickets. (See previous comment here).

AIC Limited v. Fischer anti-competitive conduct B.C. Court of Appeal certification competition law indirect purchasers market timing private class actions Supreme Court

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