Canadian class actions are evolving, with court decisions reshaping key aspects of the legal landscape. The Supreme Court of Canada (“SCC”) recently reinforced the role of provincial courts in national class actions, while the Ontario Court of Appeal (“ONCA”) clarified the certification process, providing greater certainty for businesses and governments navigating complex litigation. Looking ahead into 2025, emerging trends in privacy and ESG litigation are expected to further shape the class actions landscape.
Explore the in-depth analysis of recent landmark decisions and their impact on the Canadian class action landscape below.
What recent landmark decisions have significantly impacted class actions in Canada?
Constitutionality of national class actions confirmed
Sanis Health Inc. v British Columbia, a November 2024 decision of the SCC, affirms the constitutionality of the multi-government class action. While national class actions have played an important role in the class action regime for many years now, Sanis confirms that provincial courts may assume jurisdiction over common issues shared between a resident representative plaintiff and a non-resident plaintiff class consisting of federal, provincial and territorial governments and agencies.
Set against the backdrop of the opioid epidemic, the plaintiff in Sanis seeks recovery of damages from manufacturers, marketers and distributors of opioid products who are alleged to have contributed to the epidemic by falsely marketing their products as being less addictive and prone to abuse, tolerance and withdrawal than other pain medications.
The Government of British Columbia brought the proposed class action under British Columbia’s Class Proceedings Act with itself acting as the representative plaintiff on behalf of a class consisting of all federal, provincial and territorial governments and agencies that had paid health-care, pharmaceutical and treatment costs related to opioids.
After commencing the litigation, British Columbia enacted the Opioid Damages and Health Care Costs Recovery Act (“ORA”) to create a direct statutory cause of action, which was then incorporated into its claim. Several defendants challenged the constitutionality of ORA by applying for an order striking out ORA’s section 11 (which authorizes British Columbia to bring an action on behalf of itself and other Canadian governments) as ultra vires. The defendants argued that s. 11 of ORA did not respect constitutional territorial limits on provincial legislative competence and undermined the sovereignty of other governments. The British Columbia Supreme Court dismissed the applications, and the Court of Appeal dismissed the defendants’ appeal.
On appeal to the SCC, the court held that s. 11 of ORA is constitutionally valid.
The SCC determined that the purpose and effect of s. 11 of ORA are procedural in nature such that, pursuant to ss. 92(14) of the Constitution Act, 1867, it was an appropriate exercise of the province’s authority to legislate it in relation to the administration of justice.
With respect to whether s. 11 of ORA respects the territorial limits under s. 92 of the Constitution Act, 1867, the SCC held that s. 11 possesses a meaningful connection to British Columbia due to the common issues shared between the non-resident class members and British Columbia (as the resident representative plaintiff), and that s. 11 respects the legislative sovereignty of other Canadian governments.
The SCC also affirmed that multi-Crown participation in a national class action, authorized by the laws of each province or territory, represents co-operation between different governments, comity between the courts and achieves the goal of efficient litigation.
As a result of the SCC’s decision in Sanis, British Columbia's claims are allowed to proceed in British Columbia on behalf of itself and foreign Crowns.
More broadly, the SCC’s decision has removed ambiguity about the availability of multi-government cost-recovery class actions and has affirmed the national class action model as an efficient mode of prosecuting disputes that span provincial and territorial jurisdictions.
Finally, the SCC’s ruling that ORA is constitutional may result in similar legislation being introduced to ground government cost-recovery class actions with respect to other alleged harms, beyond existing tobacco and opioid suits. For instance, in 2024, British Columbia introduced (and later paused) Bill 12, the Public Health Accountability and Cost Recovery Act, which provided a statutory right of action, comparable to s. 11 of ORA, to redress a broad category of social harms from products and services (though the proposed legislation was understood to be targeting social media companies in particular). Now that ORA has been found constitutional, other provinces may follow suit with copycat legislation exposing a broad cross-section of industries to government class actions.
Clarity in interpreting common issues criterion in Ontario
In 2024, the ONCA provided clarity regarding interpretation of the common issues criterion under s. 5(1)(c) of Ontario’s Class Proceedings Act and, specifically, whether a one-step or two-step commonality test is applicable, siding with the latter approach. The ONCA’s endorsement of the two-step test to commonality on a certification motion provides some clarity on how certification will be determined in Ontario moving forward.
In Palmer v. Teva Canada Limited and Lilleyman v. Bumble Bee Foods LLC, the ONCA endorsed the conclusion that commonality requires a plaintiff to show some evidentiary basis establishing the “existence” of a common issue, together with a basis in fact that the proposed issue can be answered in common across the class.
The ONCA’s support for a two-step approach to certifying a proposed common issue in Palmer is consistent with the approach of the Divisional Court in Kuiper v. Cook (Canada) Inc. and the Federal Court of Appeal in Jensen v. Samsung Electronics Co. Ltd. While side-stepping the nomenclature of a one-step or two-step test in Lilleyman, the ONCA affirmed as a “necessary requirement” of commonality that the plaintiff must provide some minimal basis in evidence that the cause of action (in this case, an alleged conspiracy) could have occurred. The court distinguished satisfying this evidentiary standard from requiring proof of the claim. Requiring a plaintiff to satisfy a minimal evidentiary standard was noted to align with the court’s gatekeeping function.
What trends and developments do you anticipate in the class action space for 2025, and what opportunities or challenges are you monitoring?
Privacy class actions
We expect to see the continued movement of privacy class actions to common law jurisdictions outside of Ontario in 2025. The past number of years have seen the ONCA uphold the refusal to certify a series of class actions pertaining to intrusion upon seclusion in Ontario. In the trilogy of Owsianik, Obodo and Winder, the ONCA ruled that the common law tort of intrusion upon seclusion does not apply to circumstances where a data breach occurs due to the actions of an independent and third-party hacker.
In early 2024, in Del Giudice v. Thompson, the ONCA held that the respondents’ alleged missteps in safeguarding the appellants’ information did not satisfy the key element of the tort of intrusion upon seclusion: that the offensive conduct complained of has caused distress, humiliation or anguish to a reasonable person. While breach of privacy is a statutory tort in British Columbia, Saskatchewan, Manitoba, Quebec and Newfoundland and Labrador, the ONCA upheld the motion judge’s conclusion that the Ontario court did not have jurisdiction with respect to those statutory causes of action based upon the wording of the other provinces’ legislation, which the motion judge held expressly conferred exclusive jurisdiction on the domestic provincial courts of those provinces.
In contrast, the British Columbia Court of Appeal (“BCCA”) in G.D. v. South Coast British Columbia Transportation Authority and Campbell v. Capital One Financial Corporation accepted that a data custodian can be liable under British Columbia’s privacy legislation as a result of a data breach committed by a third party. Specifically, in Campbell, the BCCA held that the British Columbia court possessed the subject matter jurisdiction necessary to adjudicate disputes arising under Manitoba and Newfoundland and Labrador privacy statutes, paving the way for the certification of claims in British Columbia based upon privacy legislation in different provinces.
Most recently, in Donegani v. Facebook Inc., the Ontario Superior Court followed existing Ontario jurisprudence in holding that the court in Ontario did not have jurisdiction to determine actions brought pursuant to privacy legislation in British Columbia, Manitoba and Newfoundland and Labrador. While the motion judge recognized that the BCCA had reached a different conclusion in Campbell, she held that she was bound by the principle of horizontal stare decisis and left it to the Ontario appellate court to reconcile Ontario jurisprudence with the BCCA decision in Campbell.
As a result, until the ONCA revisits this issue, we expect that Ontario courts will continue to follow existing Ontario jurisprudence holding that Ontario courts do not have jurisdiction to hear claims under other province’s privacy statutes, with the result that privacy class actions are more likely to be commenced in provinces outside of Ontario, where feasible, for the foreseeable future.
ESG litigation
ESG-related litigation remains in its infancy in Canada (see proposed class proceedings regarding “recyclable” Keurig coffee pods, a proposed class action regarding systemic racism in the public service and litigation regarding the constitutionality of Ontario’s greenhouse gas emissions targets). However, mandatory supply chain reporting regarding forced labour pursuant to Canada’s Fighting Against Forced Labour and Child Labour in Supply Chains Act and recent amendments to the Competition Act prohibiting corporations from making environmental representations regarding their products or businesses absent substantiation, together with the recent trend of corporations making voluntary ESG-related commitments and disclosures, create litigation risk that is likely to lead to an increase in class proceedings.
Barrick Gold, a British Columbia corporation whose head office is in Vancouver, was the defendant in companion actions in Matiko John v. Barrick Gold Corporation. These actions pertained to violence carried out by the Tanzanian Police Force (“TPF”) hired to provide security at a mining site owned by a Tanzanian company whose majority shareholder was Barrick Gold. Although no Barrick employee or officer directed the actions of the TPF, the plaintiffs alleged that Barrick was answerable for injuries and deaths that had occurred on the mine property and had undertaken to be responsible for human rights at its mines worldwide.
Barrick was successful in having the action dismissed on the basis of jurisdiction. In particular, the court held that the subject matter of the litigation (being the management, supervision and security measures, and resulting violence causing injuries and death at the Tanzanian mine) did not have a real and substantial connection with Barrick’s activities in Ontario despite the emanation of regulatory filings and other communications about Barrick’s global policies of sustainability and human rights from Barrick’s Ontario office.
In keeping with other jurisdictions, we expect to see an uptick in litigation in this area in 2025 and moving forward. Where ESG-related class proceedings are commenced in relation to international operations or the supply chain of Canadian corporations, careful consideration should be given to any preliminary motions that can be brought, including on the basis of jurisdiction. Ensuring that environmental claims are substantiated and that prompt and accurate disclosure is made of any material information is recommended to mitigate the risk of class actions in this space.
Conclusion
With courts continuing to refine the scope and application of class actions, the landscape is becoming more clear and also more complex. As these developments unfold, businesses, governments and legal practitioners will need to stay ahead of shifting standards and evolving liabilities in this dynamic area of law.
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Kate Findlay is a partner at Aird & Berlis and a member of the firm’s Litigation & Dispute Resolution Group. Her commercial litigation practice includes corporate, securities, product liability, competition, banking, insurance defence and privacy disputes. She has significant class action defence experience regarding product liability claims, statutory causes of action under the Securities Act and misleading advertising claims pursuant to consumer protection legislation and the Competition Act. Kate has both trial and arbitration experience; she has acted as lead counsel before all levels of court in Ontario and has represented clients before courts in Alberta and British Columbia.