Simon's Megalomaniacal Legal Resources

Class Proceeding (Ont) - Appeal - Standard of Review (SOR)

. Terry Longair Professional Corporation v. Akumin Inc.

In Terry Longair Professional Corporation v. Akumin Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, this from a class proceeding order that (as required by Securities Act s.138.8) "granted leave to the respondent to proceed with his claim under s. 138.3(1) for secondary market misrepresentation (the “Leave Order”), and certified as a class proceeding the following: (i) the respondent’s claim for secondary market misrepresentation under s. 138.3(1); (ii) his primary market misrepresentation claim under s. 130.1 of the SA; and (iii) his common law negligence claim, pursuant to s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”) (the “Certification Order”)."

Here the court considered the appellate SOR applying to certification decisions:

[46] Similarly, in class action certification appeals, 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: Lochan v. Binance Holdings Limited, 2025 ONCA 221, at para. 29. To the same effect, the identification of the correct legal test for determining whether there is “some basis in fact” for the remaining certification requirements under s. 5(1) of the CPA is subject to review on a correctness standard, while the determination of whether the evidence adduced satisfies the relevant s. 5(1) requirement is a question of mixed fact and law and should not be disturbed absent a palpable and overriding error: Lochan, at para. 30.

. Davidson v. T.E.S. Contracting Services Inc.

In Davidson v. T.E.S. Contracting Services Inc. (Ont Div Ct, 2025) the Ontario Divisional Court considered the appellate SOR for certification issues, here particularly those of 'commonality':

[17] Deference is owed to a motion judge’s application of the test for certification and determination of the common issues, particularly motion judges with expertise and experience in the complex area of class proceedings: Fehr v. Sun Life Assurance Co. of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at para. 39, leave to appeal refused, [2019] S.C.C.A. No. 38387. “On such questions, appellate court intervention should be restricted to matters of general principle”: Palmer v. Teva Canada Ltd., 2024 ONCA 220, 495 D.L.R. (4th) 151, at para. 103.

. Davis v. Amazon Canada Fulfillment Services

In Davis v. Amazon Canada Fulfillment Services (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action certification appeal, here originally denied.

Here the court considers the SOR for class certification issues:

(1) The standard of review

[38] The motion judge’s findings of fact and mixed fact and law in the certification analysis are entitled to deference, and are reviewable on a palpable and overriding error standard: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 28. In particular, the findings of the motion judge as to whether a proposed class action satisfies the “some basis in fact” standard under ss. 5(1)(b)-(e) of the CPA is a contextual exercise entitled to significant deference. Appellate intervention in the class action context generally is limited to matters of general principle and legal errors: see Cassano v. The Toronto-Dominion Bank, 2007 ONCA 781, 87 O.R. (3d) 401, at para. 23, leave to appeal refused, [2008] S.C.C.A. No. 15; and Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), at para. 39, leave to appeal refused, [2005] S.C.C.A. No. 50.

. Stolove v. Waypoint Centre for Mental Health Care

In Stolove v. Waypoint Centre for Mental Health Care (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from "the dismissal of their motion to certify a class proceeding alleging systemic negligence in the operation and oversight of the maximum security forensic psychiatric hospital in Penetanguishene, Ontario that provides care for involuntary patients".

Here the court considers the appellate SOR on class action certification issues:

STANDARD OF REVIEW

[38] Decisions of motion judges on certification motions are generally entitled to substantial deference. The judges hearing these motions have developed a special expertise such that this court’s intervention should be restricted to matters of general principle: Fehr v. Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at para. 39, leave to appeal refused, [2018] S.C.C.A. No. 489; Pearson v. Inco. Ltd. (2005), 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.

[39] Thus, while the identification of the necessary elements of the pleaded cause of action is a question of law reviewable on a standard of correctness, 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: Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, 173 O.R. (3d) 682, at para. 36, leave to appeal refused, [2024] S.C.C.A. No. 406; PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 29, leave to appeal refused, [2022] S.C.C.A. No. 407; and Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, 482 D.L.R. (4th) 504, at para. 43, leave to appeal refused, [2023] S.C.C.A. No. 260.

[40] 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: Lilleyman, at para. 37; Palmer v. Teva, 2024 ONCA 220, 495 D.L.R. (4th) 151, at para. 103; and Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 94. Decisions of certification motion judges on preferable procedure are entitled to special deference because they involve weighing and balancing a number of factors, and the exercise of broad discretion: Pearson, at para. 43.

. North v. Bayerische Motoren Werke AG

In North v. Bayerische Motoren Werke AG (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal from a class proceeding certification decision, where the central issue was "the type of losses recoverable at law in a negligence action involving an allegedly defective product".

Here the court considers the appellate SOR for class proceeding certification issues:

[37] .... This court has recently affirmed that the standard of review on appeal from a certification motion depends on the nature of the issue: decisions involving questions of law are reviewable on a standard of correctness, whereas determinations of fact or mixed fact and law are reviewable on a standard of palpable and overriding error: Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, 173 O.R. (3d) 682, at paras. 35-37. As will be clear from these reasons, the certification judge made errors of law reviewable on a correctness standard.

. Lochan v. Binance Holdings Limited [SOR]

In Lochan v. Binance Holdings Limited (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal, here from "the certification of an action brought on behalf of Canadian investors who purchased cryptocurrency derivative products through an asset trading platform operated by the appellants".

Here the court considers the various SORs applicable to class action appeals:

STANDARD OF REVIEW

[28] 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 paras. 8, 10 and 36.

[29] In class action certification appeals, 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: Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, at para. 36; Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, 482 D.L.R. (4th) 504, at para. 43.

[30] 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: Lilleyman, at para. 37; Jensen, at para. 43; Palmer v. Teva, 2024 ONCA 220, 98 C.C.L.T. (4th) 9, at para. 103; and Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 94.

[31] As is explained below, the first ground of appeal advanced by the appellants involves questions of law, namely, the correct interpretation of the relevant provisions of the OSA. These issues are reviewable on a standard of correctness.

[32] Similarly, the issue of whether the motion judge reversed the burden of proof in his “common issues” analysis is a question of law reviewable on a standard of correctness. However, the motion judge’s determinations as to whether the respondents established that there is “some basis in fact” for the common issues involve issues of mixed fact and law, reviewable on a standard of palpable and overriding error.

. 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.

. Bowman v. Ontario

In Bowman v. Ontario (Ont CA, 2022) the Court of Appeal comments on the variable appellate SOR for class proceeding certification:

[26] The standard of review on appeal for each particular certification question depends on the nature of the question: Pioneer Corp., at para. 28. Whether a plaintiff has a cause of action is a question of law reviewable on a standard of correctness: Pioneer Corp., at para. 57. Whether the certification judge has identified the appropriate standard for certifying loss as a common issue is also a question of law: Pioneer Corp., at para. 94. Otherwise, substantial deference is owed to a certification judge’s application of the test for certification and determination of the common issues. On such questions, appellate court intervention should be restricted to matters of general principle: Fehr, at para. 39.

. Leroux v. Ontario

In Leroux v. Ontario (Ont CA, 2023) the Court of Appeal considered an appeal of a class action certification refusal from the Divisional Court, here regarding SSPSIPDDA applicants. The alleged causes of action were negligence and s.7 Charter.

This quote addresses the appellate SOR for class action certification issues:

[91] Substantial deference is owed to a motion judge’s certification decision and appellate intervention is only warranted if there is a palpable and overriding error of fact or an error in principle: Fischer v. IG Investment Management Ltd., 2012 ONCA 47, 109 O.R. (3d) 498, at para. 40, aff’d on other grounds, 2013 SCC 69, [2013] 3 S.C.R. 949. ....