TOP 3 Decisions
of 2019 Q1/Q2
1. Telus Communications Inc. v. Wellman: The Supreme Court of Canada held that legally enforceable arbitration clauses can preclude parties from participating in class actions. The Court held that, while Ontario's Consumer Protection Act invalidates arbitration clauses to the extent that they apply to "consumers" (as defined in the act) an arbitration clause in a service contract was enforceable against non-consumers, who could not participate in the class proceeding. Read BLG's commentary here.
2. Welsh v. Ontario: The Ontario Court of Appeal confirmed that it is the parties (and not the court) who decide the terms of a proposed settlement. The proposed settlement contemplated a $15 million settlement fund, with a maximum of $3.75 million of that amount to go to class counsel's fees. The judge below granted the settlement approval motion but (without hearing from the parties) ordered that class counsel receive the requested fee only if they donated $1.5 million of their fees to a charity. The Court of Appeal held that the motion judge could not alter a material term of the settlement in this manner. The motion judge could only raise the issue and then allow the parties to address the issue through further submissions or a renegotiation of the settlement. Read BLG's Commentary here. For an interesting contrast, see Micevic v. Johnson and Johnson, where the motion judge modified a distribution protocol, with the approval of the parties. Read BLG's commentary on that case here.
3.Berg v. Canadian Hockey League: The Divisional Court provided a helpful summary of the principles applicable in determining whether the plaintiff has met the certification requirement of demonstrating that a class proceeding would be the "preferable procedure" for resolving the class members' claims. The motion judge had held that a class proceeding would not be the preferable procedure to decide certain of the class members' pleaded causes of action. He held that those causes of action would be redundant and add unmanageable complexity to the proceeding. In overturning that finding, the Court of Appeal clarified that the "preferability analysis" requires the certification judge to compare the relative advantages of a class action to other available forms of resolving the dispute. The judge should not compare a class action that includes all of the causes of action that the plaintiffs pleaded to a hypothetical alternative version of the claim with only some of those causes of action.
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