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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

Michelle F. Yung

Real Estate Lawyer at Bennett Jones Vancouver

Vanessa Kiraly

Commercial Real Estate Lawyer at Bennett Jones Toronto

A recent Ontario Superior Court decision underscores the importance of precise lease drafting. In Malleum Real Estate v. Donut Monster, the court held that tenant obligations began on the fixed commencement date&mdash;regardless of unfinished landlord improvements or pandemic disruptions. The ruling highlights that assumptions cannot override clear lease terms and offers practical lessons for both landlords and tenants.

When Assumptions Break Leases The Need for Clear Terms

When Assumptions Break Leases: The Need for Clear Terms

Vasilis F. L. Pappas, FCIArb

International Arbitration Lawyer at Bennett Jones Vancouver and Calgary

Melanie Teetaert

Commercial Litigation Lawyer at Bennett Jones Vancouver

Geoffrey P. Stenger

Project Development, Energy, Infrastructure and Construction Lawyer at Bennett Jones Calgary

On October 7, 2025, British Columbia introduced Bill 20, the Construction Prompt Payment Act. If enacted, it will overhaul payment timelines and create a fast-track adjudication process for construction disputes. The legislation is expected to significantly impact owners, contractors and subcontractors across the province.

BC Introduces Prompt Payment Legislation

B.C. Introduces Prompt Payment Legislation

Benjamin K. Reingold

Intellectual Property Litigation Lawyer at Bennett Jones Calgary

Jesse Mighton

Insolvency and Restructuring Lawyer at Bennett Jones Toronto

Nyrie Israelian

Intellectual Property at Bennett Jones Toronto

The Office of the Superintendent of Bankruptcy has issued new guidance on the use of AI tools by Licensed Insolvency Trustees. The guidance underscores the need for oversight, accuracy, transparency, and adherence to professional obligations as AI becomes more integrated into insolvency practice.

OSB Issues New Guidance

OSB Issues New Guidance: What Licensed Insolvency Trustees Must Know about AI Tools 

Simon Grant

Banking & Finance Lawyer, Fintech Lawyer at Bennett Jones Toronto

Jessica B. Horwitz

International Trade Lawyer, Customs Lawyer, Regulatory Lawyer, Anti-Corruption and Economic Sanctions Lawyer at Bennett Jones Toronto

Andrew Bozzato

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

FINTRAC imposed a record $176.9 million penalty on cryptocurrency exchange Cryptomus for thousands of AML/KYC violations. The case underscores regulators&rsquo; increasing focus on compliance, with additional sanctions from the BCSC for operating without registration. Exchanges serving Canadian clients must ensure strict adherence to AML, KYC and securities laws to avoid similar consequences.

176 9 million fine against cryptocurrency exchange from FINTRAC demonstrates costs of non compliance

C$176.9 Million Fine Against Cryptocurrency Exchange From FINTRAC Demonstrates Costs of Non-Compliance

David J. Wahl, FCIArb

Construction Arbitration & Litigation Lawyer at Bennett Jones Calgary

Christopher Petrucci

Alex Payne

The Ontario Superior Court in Feldt Electric Ltd v Gorbern Mechanical Contractors held that non-compliance with an adjudicator&rsquo;s determination does not automatically invalidate a lien. The decision underscores the importance of jurisdiction and procedural fairness in construction disputes under Ontario&rsquo;s prompt payment and adjudication regime.

Christine Viney on CBC's Calgary Eyeopener

From the Same Authors