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Class Actions (Ont) - Appeals. Lilleyman v. Bumble Bee Foods LLC
In Lilleyman v. Bumble Bee Foods LLC (Ont CA, 2024) the Ontario Court of Appeal considered the SOR for class action certification appeals:[35] The standard of review on appeal from a certification motion depends on the nature of the issue. In general terms, decisions on questions of law are reviewable on a standard of correctness whereas determinations of fact or of mixed fact and law are reviewable on a standard of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 26.
[36] Thus, the identification of the necessary elements of the pleaded cause of action is a question of law reviewable on a standard of correctness, whereas the assessment of whether the pleaded material facts actually support those causes of action is a question of mixed fact and law reviewable on a standard of palpable and overriding error: PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 29; Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, 482 D.L.R. (4th) 504, at para. 43.
[37] Similarly, the identification of the correct legal test for determining whether there is “some basis in fact” for the proposed common issues is subject to review on a correctness standard, while the determination of whether the evidence adduced satisfies that test is a question of mixed fact and law that should not be disturbed absent a palpable and overriding error: Jensen, para. 43; Palmer v. Teva, 2024 ONCA 220, at para. 103; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 94. . David v. Loblaw Companies Limited
In David v. Loblaw Companies Limited (Div Court, 2024) the Divisional Court considered (and dismissed) an appeal of a case conference order that 'settled' terms of a larger class action certification order, here grounded in Competition Act law.
Here the court considers the SOR for class action certification:Standard of Review
[28] As noted in Simpson v. Facebook, Inc., 2022 ONSC 1284, 160 O.R. (3d) 629, at paras. 19-20:19 The standard of review for judicial appeals is set out in Housen v. Nikolaisen. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, where there is an extricable legal principle, the standard of review is correctness; however, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
20 The decision of the motion judge on a certification motion is entitled to substantial deference. An appellate court should only intervene if there is an error in principle or a palpable and overriding error of fact. [Footnotes omitted.] . Brewers Retail Inc. v. Campbell
In Brewers Retail Inc. v. Campbell (Ont CA, 2023) the Court of Appeal considered an appeal from a motion judge's unusual 'reverse' class action certification, where the parties together sought to use the class action distribution procedures to implement a negotiated pension indexing scheme.
In these quotes the court considers the appellate SOR for class action certification, specifically the 'preferable procedure' aspect:[85] A preferable procedure decision made pursuant to s. 5(1)(d) of the CPA is a matter of broad discretion to which this court owes “substantial” or “considerable” deference. Appellate intervention is warranted only if the judge made a palpable and overriding error of fact or otherwise erred in principle: Hodge v. Neinstein, 2017 ONCA 494, 136 O.R. (3d) 81, at para. 149, leave to appeal refused, [2017] S.C.C.A. No. 341; Pearson v. Inco Ltd. (2006), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 (C.A.), at para. 43, leave to appeal refused, [2006] S.C.C.A. No. 1.
[86] Where the decision on preferred jurisdiction arises in circumstances of concurrent jurisdiction, s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court the discretion to determine the preferred forum: R. v. Zolotow, 2008 ONCA 163, 89 O.R. (3d) 321, at para. 5. . Raponi v. Olympia Trust Company
In Raponi v. Olympia Trust Company (Ont CA, 2023) the Court of Appeal considered a class action certification appeal where the action was dismissed, here in relation to a syndicated mortgage scheme:[28] It is common ground between the parties that the standard of review as to whether there is a cause of action for purposes of the CPA is correctness: Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561, at para. 26. . Davies v. Clarington (Municipality)
In Davies v. Clarington (Municipality) (Ont CA, 2023) the Court of Appeal considers appeal routes from a class action context:[39] First, as a general matter, the CPA directs appeals from the determination of individual claims of class members to the Divisional Court: ss. 30(6)-(11). The trial judge was asked to award costs against the lenders in connection with the conduct and result of Mr. Zuber’s individual claim in a class proceeding.
[40] Nevertheless, in my view, the CPA does not determine the appeal route for this appeal, which does not fit within any of the express categories of appeals that lie to the Divisional Court. This is not an appeal by a class member or representative plaintiff, therefore ss. 30(6), (7), (9), and (10) of the CPA are not applicable. And although this is an appeal by defendants, it is not an appeal “from an order … determining an individual claim made by a class member and awarding the member an amount”, which is the precondition to the application of ss. 30(8) and (11).
[41] The appellants are not appealing anything about the damages award to Mr. Zuber or the costs award between themselves and Mr. Zuber. If they were, the appeal would lie to the Divisional Court. They are appealing a different order − the refusal to award costs against non-parties. Where an appeal from an order in a class proceeding is not the subject of a specific route mandated by the CPA, the appeal route is governed by the CJA: Fresco v. Canadian Imperial Bank of Commerce, 2021 ONCA 46, at para. 19.
[42] Given the amount in issue and the fact that the order under appeal is final, not interlocutory, an appeal from it lies to this court under s. 6(1)(b) of the CJA. . 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.
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