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Christine A. Viney

Commercial Litigation Lawyer at Bennett Jones Calgary

Partner

Ethan Z. Schiff

Commercial Litigation Lawyer at Bennett Jones Toronto

Sidney (Sid) Brejak

Associate

A plaintiff’s obligation to establish “some basis in fact” for a common issue is acknowledged as a low bar. Several Canadian appellate courts have, however, confirmed a “two-step test” as the standard analytical framework. Under the two-step test, plaintiffs must not only show that the proposed common issues can be answered across the class, but must also establish, as a matter of fact, that the proposed issues exist. The two-step test stands in contrast to a one-step test that considers only if the proposed common issue can be answered across the class.
The added requirement of proving the existence of proposed common issues means plaintiffs need sufficient factual evidence at the certification stage. Looking forward, representative plaintiffs may pursue innovative strategies to gather the evidence needed to meet their evidentiary burden. One such avenue, considered below, involves requesting pre-certification discovery.

Raising the Low Bar Plaintiffs Seek New Strategies to Prove Common Issues for Certification

Raising the “Low Bar”: Plaintiffs Seek New Strategies to Prove Common Issues for Certification 

Emrys Davis

Commercial Litigation, Competition and Class Action Lawyer at Bennett Jones Toronto

Michael A. Eizenga L.S.M.

Leading Canadian Class Action Litigator at Bennett Jones Toronto

Partner 

Gannon Beaulne

Litigation Lawyer at Bennett Jones Toronto

In our 2025 edition of Looking Forward, we review notable class action developments from the past year and consider what recent trends in the law might tell us about what to expect in the years ahead.

Class Actions Looking Forward 2025

Class Actions: Looking Forward 2025

Daniel L. Morrow

Litigation Lawyer at Bennett Jones Edmonton

In Abbas v Esurance Insurance Company of Canada, 2023 ABCA 36, the Alberta Court of Appeal endorsed what it described as draconian consequences for insurance fraud as consistent with the Insurance Act, RSA 2000 c I-3 and necessary to further the underlying purpose of the legislation. Specifically, the Court confirmed the longstanding rule that all claims under a single insurance policy stemming from one incident are void if the insured commits fraud, even if the fraud is material to only a portion of the claim.

Court of Appeal Endorses Draconian Deterrent to Insurance Fraud

Ian W. Thompson

In Vale Canada Limited v Royal & Sun Alliance Insurance Company of Canada,2022 ONCA 862, the Ontario Court of Appeal distilled a 70-page decision about a multi-jurisdictional insurance coverage dispute into one straightforward conclusion: "A comprehensive general liability insurer, underwriting primary or excess insurance coverage for Ontario risks, connects itself to Ontario for jurisdictional purposes". In addition to this clear statement on jurisdiction over insurers who issue policies to Ontario businesses and residents, the decision affirms that the jurisdiction framework set out by the Supreme Court of Canada in Club Resorts Ltd v Van Breda, 2012 SCC 17 applies equally to contract disputes and tort claims.

Home is Where the Risk is When Carrying on Insurance Business

Home is Where the Risk is When Carrying on (Insurance) Business

Luke Morrison

Energy Project Development, M&A, and Commercial Transaction Lawyer at Bennett Jones Calgary

Ashley M. White

Corporate, Commercial Transactions, Power & Energy Lawyer at Bennett Jones Calgary

Pamela Clark

Lawyer at Bennett Jones Calgary 

Associate 

The federal government has released a second wave of major projects recommended for expedited review by the Major Projects Office, with a focused shift toward critical minerals and energy development. The list includes strategic clean power, LNG, nickel, graphite, tungsten, and hydro initiatives across multiple provinces and territories. While the anticipated Alberta&ndash;BC pipeline was not included, the selected projects underscore Canada&rsquo;s intent to strengthen energy security, support Indigenous-led development, and accelerate investment in key resource sectors.

Second Wave of Fast Tracked Projects Unveiled including Critical Minerals and Energy Projects

Second Wave of Fast-Tracked Projects Unveiled including Critical Minerals and Energy Projects

Oliver Loxley

Corporate Lawyer at Bennett Jones Vancouver

Dom Sorbara

Banking & Financial Services Lawyer at Bennett Jones Toronto

In the context of corporate debt, 'liability management' refers to a company taking steps to manage its existing debt obligations. This often involves a combination of one or more open market repurchases, redemptions/repayments, consent solicitations, tender offers or exchange offers and may involve other transactions. A repurchase of debt from a holder is one of the most straight-forward examples of liability management.

Liability Management in Canada

Andrew Bozzato

Corporate, M&A, Securities Lawyer at Bennett Jones Toronto

Bishoy Attia

Articling Student at Bennett Jones in Toronto

Articling Student

Private investment in the defence sector is accelerating as governments realign policy priorities and expand support for dual-use and DefTech innovation. Canada&rsquo;s 2025 Budget and long-term spending commitments are reshaping the industry, driving new opportunities across AI, cyber, space, advanced manufacturing and critical infrastructure. With global capital flowing into defence technology and structural reforms underway to modernize procurement, the sector is rapidly transitioning from fragmented to fully investable.

Policy Dual Use and DefTech Drive a New Era for Private Capital in Defence

Policy, Dual-Use and DefTech Drive a New Era for Private Capital in Defence

Daron K. Naffin

Energy, Environmental/Regulatory and Expropriation Lawyer at Bennett Jones Calgary

Tim Myers

Regulatory, Environmental, Aboriginal and Expropriation Lawyer at Bennett Jones Calgary

Thomas Machell

Regulatory Lawyer at Bennett Jones Calgary

On November 4, 2025, the Alberta Energy Regulator released AERH2S, an updated version of its computer model for calculating Emergency Planning Zones (EPZs) for sour gas applications. AERH2S replaces the longstanding ERCBH2S model and is available for immediate use by industry. According to AER Bulletin 2025-34, the use of AERH2S will become mandatory for all applications filed under Directive 056: Energy Development Applications and Schedules, including amendment applications, starting January 1, 2026. The continued use of ERCBH2S is permitted for updates to existing EPZs (and any EPZs established before January 1, 2026) under Directive 071: Emergency Preparedness and Response until further notice.

Alberta Energy Regulator Releases New AERH2S Model for Sour Gas Operations

David Cassin

Employment Lawyer at Bennett Jones Toronto

Doug Fenton

Robert W. Staley

Commercial, Securities and Class Action Litigation Lawyer at Bennett Jones Toronto

Vice Chair and Partner

In McPherson v Global Growth Assets Inc., the Ontario Superior Court interpreted the no-reprisal provisions of the Securities Act for the first time, awarding more than $5.3 million to a CEO who was terminated after raising compliance concerns. The decision underscores the strength of the Act&rsquo;s protections for employees who engage in protected activities and highlights the significant risk to employers of taking disciplinary action without clear, documented justification.

Ontario Securities Act No Reprisal Provisions Results in 53 Million Award to CEO

Ontario Securities Act No-Reprisal Provisions Results in C$5.3 Million Award to CEO: A Warning to Regulated Employers

Christine Viney on CBC's Calgary Eyeopener

From the Same Authors