Class Actions: Looking Forward 2023

Written By Alexander Payne, Gannon Beaulne, Cheryl Woodin and Mike Eizenga

We begin with an update on a trilogy of privacy class actions appeals in which plaintiffs sought, unsuccessfully, to expand the tort of intrusion upon seclusion. 

Next, we canvass the various approaches of Ontario courts to the new dismissal for delay regime—which evolved considerably over the course of 2022.

We then provide an overview of a series of securities class actions, which include a decision clarifying the circumstances in which a common law misrepresentation claim may surmount a historical hurdle commonly faced by plaintiffs—the individual issues overwhelm the common issues. The securities class actions round-up also summarizes a class action in which plaintiffs unsuccessfully sought to backdate regulatory requirements, alleging, effectively, that defendants ought to have been conducting themselves in accordance with those regulations and standards before they came into effect.

We then turn to recent decisions in which courts have evaluated the role and specificity of a methodology for proving general causation in product liability cases, particularly the requirement for suitably tailored methodology where an array of harms are alleged.

In a similar vein, we discuss decisions in Canada and the U.S. regarding the recent proliferation of class actions regarding alleged impurities (particularly nitrosamines) in pharmaceutical products.

Finally, we discuss a potential new approach to multijurisdictional national settlements in Québec.

Our Class Actions group continued to drive results for clients in the most high-profile, high-stakes cases of the year, successfully acting on several precedent-setting decisions.

The firm won the Class Action Firm of the Year at the 2022 Canadian Benchmark Litigation Awards, and practice group co-chair, Mike Eizenga, won Class Action Litigator of the Year for the fifth time in the last seven years.

Co-chair Cheryl Woodin was also awarded top marks by Chambers and Partners in product liability litigation, with other practice group members also receiving recognition and distinction for their expertise in the field.

We also recently expanded our national reach by opening a new office in Montréal, enabling us to further serve class actions and competition clients in all Canadian jurisdictions where they may face litigation.