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Class Actions

. Fresco v. Canadian Imperial Bank of Commerce

In Fresco v. Canadian Imperial Bank of Commerce (Ont CA, 2021) the Court of Appeal considered the appeal route under the Class Proceedings Act, 1992:
[19] Whether this court has jurisdiction over an appeal from a judgment or order in a class proceeding is a two-step analysis. The first question is whether the appeal is from a judgment or order covered by s. 30 of the CPA, and if so, whether s. 30 directs the appeal to this court. If the order is not one covered by s. 30 of the CPA, then whether the appeal lies to this court is determined by the provisions of the CJA. In the latter circumstance, the primary determinant is whether the order is final, as opposed to interlocutory: Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16.

[20] The version of the CPA that governs this appeal provided, in s. 30(2) and (3), as follows:
(2) A party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court.

(3) A party may appeal to the Court of Appeal from a judgment on common issues and from an order under section 24, other than an order that determines individual claims made by class.
. Canada (Attorney General) v. Jost

In Canada (Attorney General) v. Jost (Fed CA, 2020) the Federal Court of Appeal considered a class action certification under the Federal Court Rules:
V. The Federal Courts Rules Governing Class Actions

[22] Certification motions are governed by Rule 334.16(1) of the Federal Courts Rules, which states that a judge shall certify a proceeding as a class proceeding if the following five requirements are met:
(1) the pleadings disclose a reasonable cause of action;

(2) there is an identifiable class of two or more persons;

(3) the claims of the class members raise common questions of law or fact (whether or not those common questions predominate over questions affecting only individual members);

(4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and

(5) there is a representative plaintiff or applicant who would fairly and adequately represent the interests of the class, among other requirements.
[23] It should be noted that the criteria set out in the Federal Courts Rules are substantially similar to the class action certification criteria applied in Ontario and British Columbia, with the result that the jurisprudence emanating from those jurisdictions is instructive: Buffalo v. Samson Cree Nation, 2010 FCA 165, 405 N.R. 232 at para. 8.

VI. General Principles Governing Class Proceedings

[24] Before addressing the Attorney General’s arguments as to why the pleadings in this case do not disclose a reasonable cause of action, it is helpful to start with a review of the general principles governing class actions.

[25] As the Supreme Court has observed, class actions allow for improved access to justice for those who might otherwise be unable to seek vindication of their rights through the traditional litigation process. Class actions also enhance judicial economy, allowing a single action to decide large numbers of claims involving similar issues. Finally, class actions encourage behaviour modification on the part of those who cause harm: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at paras. 27-29; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 27; and Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184.

[26] The Supreme Court has also held that an overly restrictive approach to the application of class action certification legislation must be avoided, so that the benefits of class actions can be fully realized: Western Canadian Shopping Centres, above at para. 46; Hollick, above at para. 15.

[27] As this Court observed in John Doe, the focus at the certification stage is on the form of the action. The question at this point is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action: above at paras. 23 and 24.

[28] The onus is on the plaintiff in a certification motion to establish an evidentiary basis for certification: Hollick, above at para. 25; John Doe, above at para. 24. That is, the plaintiff must show some basis in fact for each of the certification requirements, apart from the requirement that the pleadings disclose a reasonable cause of action. Each of the asserted causes of action will be addressed in turn.


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