Ontario Court of Appeal Says that Plaintiffs Cannot Amend Instead of Appeal

In David v. Loblaw Companies Limited, 2025 ONCA 830, the Ontario Court of Appeal delivered a clear warning to class plaintiffs: a certification denial for failing to plead a cause of action is final. Absent one of the narrow exceptions to res judicata, representative plaintiffs don’t get another run at certification by amending their pleadings—their only path forward is an appeal.

This class action was previously certified against nine defendants, but not Maple Leaf Foods Inc. (Maple Leaf) because the representative plaintiffs failed to plead a viable cause of action against that defendant. The representative plaintiffs did not appeal that certification order. Instead, they sought to amend the certification order, supported by an amended pleading that asserted a particularized cause of action against Maple Leaf. As with the motion judge, the Court of Appeal held that the initial dismissal of certification against Maple Leaf was a final order, and the motion to amend the certification order was therefore res judicata, which bars relitigation of previously adjudicated matters.

The Court of Appeal also confirmed that the discretion not to apply res judicata is "very limited". The evidence tendered by the appellants only indicated the amended claim’s proposed new pleadings were reasonable, not true, which fell short of demonstrating the kind of fundamental unfairness that would justify the exercise of that very limited discretion. The Court of Appeal emphasized finality notwithstanding the appellants’ arguments that certification is a fluid process that could be periodically revisited.

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• The representative plaintiffs sought to distinguish their circumstances from Obodo v. Trans Union of Canada, Inc., 2022 ONCA 814, asserting that their pleadings only lacked particulars, and did not contain an “incurable” defect. The Court of Appeal concluded that courts need not "consider how close to asserting a cause of action the unsuccessful plaintiff came."
• The Court concluded that sections 8 and 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 and Rule 26.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, cannot be relied upon to avoid the application of a party's substantive right, including Maple Leaf's right to rely on res judicata.
• On May 7, 2025, the Ontario Superior Court of Justice approved a settlement agreement between the Representative Plaintiffs and four of the Defendants contemplating a settlement amount of C$500,000,000 in David v. Loblaw, 2025 ONSC 2792. The action continues against the remaining Defendants against whom the action was certified.