Looking Forward: Class Actions in 2021

Instability and uncertainty were the two constants in 2020. The COVID-19 pandemic uprooted social norms and challenged businesses. The long range impact of that instability and uncertainty remains to be seen. For different reasons, instability and uncertainty governed class actions in Canada in 2020 as well. A series of landmark decisions and legislative amendments impacted key substantive and procedural areas of the law, moving in both plaintiff- and defendant-friendly directions. While the long range impact of these developments remains to be seen, the objective is certain: to clarify, simplify and streamline not only what the law is but how it is to be applied through the procedural vehicle of the class action.

The Class Action Practice Group at Bennett Jones continued its tradition of involvement in the year's most significant cases, focusing on practical solutions where they are possible and seeking clarity from the courts where it is needed. As a group, we continue to work to earn our reputation for breadth and depth in the class actions practice and the ability to deliver critical victories for our clients in the nation's highest courts.

We review notable developments in Canadian class actions in 2020, and provide an outlook to critical areas of importance in 2021. We begin by focusing on the effects that COVID-19 has directly had on class action litigation. Since the pandemic began in the early months of 2020, more than 30 COVID-related class actions have been started in Canada, a number likely to grow as we move throughout 2021. We then turn to the important decision of the Supreme Court of Canada in Atlantic Lottery Corp. v Babstock, which ended the 16-year-long debate on the use of waiver of tort as an independent cause of action. Next, we survey the recent amendments to Ontario's Class Proceedings Act, 1992, which have changed the certification test in Ontario and made other changes that aim to streamline the class action process in Ontario.

We also discuss the much anticipated decisions of the Supreme Court in Uber Technologies Inc. v Heller, which has reformulated the approach taken to mandatory arbitrations clauses, and 1688782 Ontario Inc. v Maple Leaf Foods Inc., which clarified the approach to the duty of care analysis in negligence claims for “pure economic loss”. We then turn our attention to the precedent setting decision of the Federal Court of Appeal in Laliberte v Day, the first contested carriage motion in the Federal Court. Finally, we end with a look at other notable developments in class actions provided by appellate courts in 2020, including key developments relating to class action settlements.

As we look forward to 2021, we remain committed to navigating the intersection of the law that impacts our clients and the way that it is delivered in and out of the courtroom in the context of class actions.  

This publication was jointly written with contributions from Tim Heneghan, Nina Butz, Maya Bretgoltz, Katrina Crocker, Cheryl Woodin, Ranjan Agarwal, Rabita Sharfuddin, Charlotte Harman, Doug Fenton, Gannon Beaulne, Keely Cameron, Adam Zur, Mike Eizenga, and Joseph Blinick, with special thanks to articling student, Peter Douglas, for his assistance with the preparation of this publication. In addition, parts of this publication were presented at the LSO Civil Appeals Year in Review program held on December 8, 2020, which was co-authored by Celeste Poltak.