Looking Forward: Class Actions in 2019

Written By Michael A. Eizenga, Cheryl M. Woodin and Ranjan K. Agarwal

For the last six years, the Bennett Jones Class Actions Practice Group has published an annual year-in-review: our attempt to recap some highlights in class action litigation over the last year and make some soft predictions about where the practice and the law are headed in the coming year. Though class actions have been a mainstay in Ontario for almost 30 years, the practice is still developing and maturing, with new issues arising every day and new law from our appellate courts and the Supreme Court of Canada on some fundamental issues.

In this year’s edition, we start with a look at competition and antitrust class actions, an area that will surely be upended when the Supreme Court of Canada releases its decision in Godfrey v Toshiba Corporation. Then, we turn to the intersection between arbitration clauses and class actions, an issue that has been the subject of two appeals this year alone. Next we survey privacy law class actions—the Starwood database security incident is but the latest example of companies and governments grappling with class actions following privacy breaches. From a more ground-up level, we discuss the evidentiary standard in product liability class actions—despite being described as “quintessential” class actions, our courts still grapple with whether to certify these cases.

We also discuss the court’s response to third-party funding agreements—with the rise of more domestic funders and creative arrangements, we expect the courts to continue to scrutinize these agreements. Finally, we end with a discussion of class actions built on statutory breach as well as public law class actions, which are some of the most complex class actions and, as a result, generate some of the most interesting decisions.

We would be remiss not to highlight some of our group’s achievements this year: Cheryl Woodin was named Benchmark Litigation’s 2018 Class Action Lawyer of the Year; the practice group and several of its members ranked highly from Chambers and Partners; our lawyers appeared in several landmark cases in the Supreme Court of Canada (Godfrey v Toshiba Corporation and Wellman v TELUS Corporation) and the Court of Appeal for Ontario (Das v George Weston Limited, Lavender v Miller Bernstein LLP and Shah v LG Chem Ltd.); and we co-authored Class Actions in Canada, a new edition of the leading casebook on class actions and we continue to co-author Class Actions Law and Practice, which has been a leading loose-leaf service for 20 years.