S6 EP2 | What’s keeping corporate counsel up at night? 2025’s Top litigation trends

It’s that exciting time of year again: the release of the Norton Rose Fulbright Annual Litigation Trends Survey. Join hosts Ted and Erin as they dive into this year’s findings and what they mean for corporate counsel in 2025. In this episode, they break down some of the most pressing issues uncovered in the survey, including greenwashing risks, evolving cybersecurity regulations, and shifts in class action litigation. Helping to unpack these insights are three guests each bringing their expertise to the discussion.

Ray Chartier, Senior Partner in the Calgary office and Canadian Co-Head of Responsible Business & Sustainability, examines the growing risks of greenwashing and its impact on Canadian and U.S. markets. John Cassell, Partner in the Calgary office and Canadian Co-Head of Cybersecurity & Data Privacy, explores how the survey reflects major legislative changes ahead for cybersecurity law in Canada. Finally, François-David Paré, Partner in the Montreal office and Co-Chair of the National Class Actions Team, highlights the increasing focus on consumer protection class actions, a key concern in this year’s findings.

For more information on our Litigation Trends Survey and access to the 2025 summit recording, visit our 2025 Annual Litigation Trends Survey webpage.

This episode is accredited 0.5 substantive hours in Ontario, 0.5 substantive hours in British Columbia.

Listen and subscribe to the Disputed podcast on:

Disputed episodes >

[00:00:00] Ted Brook Welcome back to Disputed. We're your co-hosts, Ted Brook.

[00:00:03] Erin Brown And Erin Brown.

[00:00:04] Ted Brook We are very lucky today to be chatting with three partners about the Litigation Trends Survey 2025.

[00:00:13] Erin Brown Ray Chartier is a senior partner in our Calgary office and is Canadian co-head of responsible business and sustainability. François-David Paré is a partner in our Montreal office and is the Canadian national chair of litigation and disputes. Last but not least, is John Cassell, who is a partner in our Calgary office and Canadian co-head of our cybersecurity and data privacy practice.

[00:00:35] Ted Brook Welcome back to all of you, because you've all been guests on the podcast before.

[00:00:39] Ray Chartier It's nice to be back. It's been a while. So nice to get back in the seat.

[00:00:44] Ted Brook Yeah. Good into the hot seat of our virtual studio.

[00:00:47] Erin Brown And we actually talked to both John and FDP last year also about our Litigation Trends Survey. So excited to sort of unpack some of the nuances and differences with this year's report.

[00:01:00] Ted Brook This is the 20th anniversary. So two decades at the firm has been putting out the report. François-David, can you tell us a remind us what is this survey about and sort of who makes up the group of respondents that we interview to put together the survey?

[00:01:17] François-David Paré Sure. So you just mentioned it's it's our 20th anniversary. It's the longest running survey of that sort in the United States. And for Canada, it's our second year participating in the survey. The survey collects and presents the experience and opinions of corporate counsel regarding litigation issues and trends from a wide range of industry sectors, I would say. In terms of who are your or our respondents, for Canada, we have had nearly 100 survey respondents spread across ten provinces and territories. So enough to make, you know, meaningful Canadian contribution and comparison with the US where they have had 300 survey respondents. And the survey is also completed with in-depth interviews of some in-house counsel, some of them being clients, others not clients, to have, you know, a representative survey of of the industry.

[00:02:23] Erin Brown Without giving away the conclusions too much about the survey. I mean, we have François-David today to talk about class actions. We have Ray to talk about ESG. And we have John to talk about cybersecurity. So, you know, a little hint that those are some pretty consistent themes that are coming up in our report in terms of of areas of focus. Where you want to start, Ted?

[00:02:42] Ted Brook Well, I was going to say that shouldn't surprise anyone who's, you know, vaguely aware of the litigation landscape in North America. But maybe we can start with some of the highlights. And I'll turn this one back to François-David. But John and Ray, feel free to kind of jump in. What are the top line highlights from the survey?

[00:03:03] François-David Paré Well, since this is a joint collaboration between the US and Canada, some of the highlights are more specific to to one country than the other. But in general, I'd say that the findings are quite a line between the two regions. One of the highlights is an increased perception of risk with respect to antitrust and banking disputes. Cybersecurity litigation continues to be a major concern. And in John, we'll be able to speak to that later. Another big piece or big ticket item this year are regulatory proceedings in both regions major concern of increased regulatory risks on many fronts. And we're going to speak to a few of them.

[00:03:48] Erin Brown Lots to unpack there, and maybe even some updates since the survey and since the survey results.

[00:03:54] François-David Paré Well, in Canada, one of the main concern on the regulatory front, or one that has been highlighted by the survey, is on the environmental side. And I think Ray is going to speak to that later. But a concern about exposure to greenwashing claims and new changes that will allow private parties to bring the disclaimer. And maybe one last highlight, so I can stop talking and leave the floor to others, but class actions I've been, you know, held. I've held steady, I would say. And we've seen an increase in consumer law related class actions both in the US and Canada. And so those would probably be, at least from my perspective, the highlights of the survey.

[00:04:37] Erin Brown There's so much to unpack there. Let's move to Ray for a minute. And Ray on the ESG front and the environmental related claims, what are you seeing in that landscape?

[00:04:49] Ray Chartier Well, our clients have consistently, you know, known this to be an area of risk. And it's interesting for me to see the comparison in the survey results between the US and Canada. One of the big changes in Canada last year where where changes to the Competition Act that were specifically designed to try and make more robust the fight against greenwashing by corporate greenwashing in Canada. And so the survey respondents were overwhelmingly of the view that there would be an increase of risk in Canada to potential claims of greenwashing as a result of those changes to the Competition Act. And I think there's a comment in the US part of the survey about, you know, these types of environmental claims and ESG related claims. And the in-house counsel had provided a quote that you're sued by both sides. And I think, you know, it is one of those situations where you're a bit you're a bit damned if you don't in one sense and damned if you do. So there's been a proliferation and a pressure out there in the market for companies to speak to the sustainability and to the environmental friendliness of their products or, you know, their businesses. And some some companies make it a core element of their businesses. And there's a huge pressure in order to, you know, maintain your corporate or your competitive advantage or, you know, your market share to increasingly make statements. But with that, on the other side, the sort of damned if you do part of it is once you start giving in to that pressure and making statements about your products, you do run the risk that you're going to face scrutiny and that, you know, people are going to say, well, you know, are you just saying that or do you have a way to substantiate that?

[00:06:46] Erin Brown And of course, that's internationally recognized methodology, which everybody knows what that means, obviously. But in terms of the kind of damned if you do, damned if you don't, I mean, one of the consistent themes out of the US is the sort of anti-ESG sentiment and the disputes that arise when shareholders have a different view than the company about whether they should be taking certain environmental steps. Are we seeing that in Canada to the same effect?

[00:07:10] Ray Chartier Not to the same effect. I think there's been a perhaps a bit of a push back, but there's always been a tension. I mean, I recall having conversations with clients as long as a few years ago when there was a really big push to start making statements and commitments to net zero carbon neutrality by 2050. And then you know that the day 2030 started to come out. And as you know, like, that's not a long time from now. And one of the tensions that we spoke about when I was talking to in-house counsel about that was at a certain stage, the math don't work anymore like you will. You really have to be able to track these things. And yet it's very difficult to make statements like that that are able to be backed up in a concrete way. And so I think there's been a natural tension and perhaps more recently, I mean, pendulum swing both ways. And if you see some a trend moving one way, I think throughout my career, I've always felt that you can always feel that there's going to be a pullback, even if it's the direction of travel remains moving in one direction. It's never a smooth ride. So I think we're in one of those situations where there's a strong pullback for sure. And politics at play in the US, there is certainly a mirror, I think, in Canada to an extent.

[00:08:39] Ted Brook That that reminds me that there was another thing that jumped out in the report to me, and pivoting to John here is there seemed to be a difference in views or concerns around cybersecurity and data privacy dispute risk. Particularly, it seemed like respondents in Canada were more concerned about about this risk than the respondents in the US. And I'm wondering if you picked up on that.

[00:09:03] John Cassell Yeah, thanks. Thanks, Ted. And that was a really interesting finding too. That's a bit curious. You know, generally we see and I see in my practice is that the cyber risks facing Canadian clients and US clients are generally equivalent in the US, you know, for several years has been slightly ahead in terms of their cybersecurity preparedness. You know, and just readying for for the various risks from a cybersecurity perspective. I speculate what that finding is in the survey is really a reflection of some pretty significant legislative changes that were on the horizon in Canada from a privacy and cybersecurity perspective, as several of which have been since passed, several of which now have been, I'll call them, terminated. And really a knock on impact, I'll call it, from when clients are seeing while we have various pieces of legislation that address privacy and cybersecurity risk. Significant regulatory penalties for noncompliance. And I think that leads to an overall impression of greater risk and dispute risk arising out of these pieces of legislation generally. Fortunately or unfortunately, depending on your perspective, those pieces of legislation were both canceled or terminated with the recent proroguing of federal parliament. So TBD, whether we'll see them revived. But I think at the time.

[00:10:34] Ted Brook They could come back but there

[00:10:36] John Cassell They could come back likely

[00:10:36] Ted Brook They are essentially dead right now with the proroguing of parliament.

[00:10:40] John Cassell That's right.

[00:10:40] Ted Brook What was your kind of advice be that, yes, concerns obviously still top of mind, but things maybe are the clouds on the horizon are not as dark and dreary as clients were thinking last year during this court of storm of legislation in the works in Canada.

[00:10:59] John Cassell Well, I think that's increasingly true from a legislative perspective, although we're still seeing pieces of legislation come through from privacy cybersecurity perspective. So there's you know, I didn't indicate all of them, but there's other pieces of public sector legislation across the country now, including significant fine and penalty compliance requirements. So probably, yes. But I think it's a temporary blip. The legislation will catch up under Europe's GDPR privacy legislation. Canada is deemed as an adequate regime for its equivalent, meaning we have certain requirements in terms of data transfers that we don't have to adhere to certain additional requirements that the US does. That adequacy adequacy designation is reviewed every few years. So there's always the risk that if our privacy legislation is deemed to be inadequate, it's not keeping up with the times, essentially. It doesn't provide adequate protections that will lose that designation, you know, and be a big blow to our ability in some ways to do business with the EU and transfer data. So I think that the threat of losing that designation is still going to drive legislative change. And then, of course, and Ray and François-David have already touched on it to some degree. There's always more litigation risk in the US, and there's lots of new different types of cyber and privacy litigation down there that we're always watching closely to see if they spill over to a greater degree in Canada. Things are changing, but a lot of stuff stays the same. So François-David, class actions again are at the top of the list. This has been a few years now. What can you say, though, about the, you know, this year's survey and the class action highlights?

[00:12:54] François-David Paré Well, from the surveyed respondents, a quarter of them or 24 perecent, nearly a quarter experienced class actions in the last year. So obviously, this is top of mind. I would say, from this years, contrary to some of the other years assessment this year highlighted consumer protection class action as the main main concern or main risk for survey respondents. And in the previous year we seen cybersecurity as an expected risk. This year I think really it's consumer protection law that is that is getting the the higher marks. And to me.

[00:13:32] Erin Brown What do you think is driving that? And do you think that's Canada, too?

[00:13:35] François-David Paré Yes. And I think especially for Canada. We've seen actually a higher take in Canada with respect to expected risk. And I think it comes from the regulatory landscape that we just discussed. Canada is a very fast, evolving, regulated regulatory landscape, and the consumer protection law aspect of it is no different. I mean, we've seen important changes in Quebec and Ontario to their Consumer Protection Act, and we've seen even New Brunswick adopted its first ever Consumer Protection Act last year. So I see that respondents are viewing the evolving, you know, regulatory scheme as a further risk of of these type of class actions. And I mean, exposure is high risk or high with class action. So obviously there are top of mind. And we've also seen, we saw a dip in the past few years in securities class actions. And we're seeing that they're picking up again. So securities class action are of major concern. Again, significant exposure that they bring to to public issuer, that's a concern with with those type of actions. And so those will probably be the two areas of concern for Canadians.

[00:14:54] Erin Brown And what about one of the the things that was noted in the report as well is that settlement is becoming more difficult. Is that something that you're seeing?

[00:15:03] François-David Paré I think there's more scrutiny on on plaintiffs or class counsel's fees in many jurisdictions. And so obviously that adds a layer of difficulty to to settle actions because their piece and parcel of a settlement, the plaintiff's fees, and we've seen more and more effort to to segregate the actual settlement from the fee structure, and allow the courts to to express their views are concerned about some of the magnitude of the class fees that can that can be derived from these settlements. So so, yes. But we continue to see a significant number of settlements in class actions, be it in Quebec, Ontario, BC, I mean, simply because of the exposure risk and and oftentimes once an action or, either before certification or after certification, there is an interest for parties to try to find an amicable resolution to this type of action, and to be able to compensate or continue the interest in your business with the consumer that may have felt they have been wronged by a certain business practice or representation on the product.

[00:16:27] Ted Brook And on the flip side, actually, I've seen in some instances an increased sophistication from class counsel and plaintiffs firms in assessing their risk. Right. And sort of understanding, look, we are going to take this class action the distance. It doesn't make sense for the class members. It doesn't make sense for our firm. And then actually more of a willingness to talk settlement. And so sort of and it may be in the US, Erin, where they're seeing more difficulty in light of nuclear verdicts and sort of less appetite for settlement.

[00:17:01] Erin Brown That's what I was going to say. If you if plaintiff counsel has this potential that they're going to get some nuclear new clearly high settlement or judgment attention, potentially, then it could disincentivize settlement. But that's not happening as much in Canada.

[00:17:16] François-David Paré And there's also another piece in the US, where the contrary to most consumer protection legislation in the various jurisdiction in Canada, and the US, oftentimes your contracts with consumers are your terms and conditions will provide for arbitration clauses. And so that's that's a possibility in the US, it's not in Canada. So oftentimes they will try to oppose a class action by, you know, using these clauses and trying to open an old, you know, parallel channel of resolution of claim resolution. And so that also adds a layer of difficulty in settling these big class action in the US where it's not a reality here in Canada.

[00:17:59] Ted Brook Any other thoughts from from you, Ray or John, about sort of looking ahead? Right. The report says one thing about what concerns are of clients, corporate counsel for the year. But what do you think should be top of mind for clients?

[00:18:17] Ray Chartier Well, in carrying on on what I was discussing, the the Competition Act changes, some of them changes the ability of independent parties to take a case to the tribunal come into effect this year. And there was guidance issued for public comment on the changes to the Competition Act that I suppose clarified some things, clarified, you know, certain things like, you know, what's meant by internationally recognized methodology. And, you know, they helpfully said, well, if there's a methodology that's used in two or more countries.

[00:18:54] John Cassell But not necessarily by the government. So, you know, it's questionable how much the guidance itself has actually assisted. But this, you know, potentially fairly significant change that will, you know, potentially allow many more of these claims to be pursued by potentially climate activists and environmental groups. The guidance itself that they issued on December 23rd said, more guidance to follow. So I think, you know, part of this book is it's missing chapters that are yet to be written. And so I think there still is a lot of uncertainty. And I expect that will be something that continues on. I mean, it was obviously a fairly significant concern to the respondents. There was, you know, two out of three respondents thought there would be an increased risk of of claims of corporate greenwashing in Canada. And I think that kind of concern and, you know, the risk that's associated with what is being disclosed or promoted by companies is going to continue in in 2025. And with this change that comes into effect in June of this year, again, I think that's something to look look ahead to. I think that there's, you know, just as I said, an inherent tension between, you know, trying to show corporate responsibility and sustainability as a core ethic, but at the same time being subject to a lot of scrutiny for what you say.

[00:20:33] Erin Brown One point I wanted to jump in on the December 23rd guidance from the bureau. I agree that, you know, there was some discussion of what's internationally recognized methodology, etc., that provides some clarity and some, you know, some helpful confirmations. In some respects, I would say probably the most interesting confirmation and you have to take this with a grain of salt because we're talking about bureau guidelines in an era of private enforcement. So it remains to be seen how private applicants and how the tribunal will interpret this. But the bureau has said, and I think this was top of mind for a lot of companies, they have said they are focused on marketing and promotional representations made to the public rather than representations made exclusively for a different purpose, such as to investors and shareholders in the context of securities filings, because that was something that was coming up a lot. I have securities obligations. I need to put out my corporate sustainability report, but I have these greenwashing representations. You know, we had a lot of discussions with clients around, you know, a report that's very detailed that can that can, you have that forum to provide the substantiation to put the, you know, a bit more of the methodology in. And so I think that was a nice little, you know, a little nugget of clarification from the bureau that they're not they themselves are not going to be looking at securities filings as the focus. But again, caveat that, you know, I think that position could be challenged based on the wording of the law. So it remains to be seen if they'll be more developments there. But I think that was a nice little pre-Christmas nugget from the bureau.

[00:22:02] Ray Chartier That I think was helpful, but there's a lot of wait on exclusively, I think. So, I think that's where you'll see the challenge come and maybe you'll you will see the argument made that some of the securities filing should still be considered.

[00:22:18] Erin Brown  Or if you take a portion of a line out of a securities filing and put it into something else, it's no longer, you know, shielded by that.

[00:22:24] Ray Chartier Exactly. It does, it does that. Yeah, exactly. Is that quoted in something else that you're putting out. So yeah, I agree. There's definitely a lot of helpful stuff in there, but I think there's a lot more that probably needs to be said, and a lot of it they've left up to, you know, the courts to decide. There's a lot of undefined terms that, you know, they've made it clear they're using plain meaning. And plain meaning is a dangerous thing where courts never considered, you know, exactly what this term will mean when it's, you know, considered by by the tribunal.

[00:22:59] Erin Brown And at the time of recording, that consultation period is still open. I think it's open till February 28th. So if you're listening on the day this drops, and you want to feed into that bureau process on on greenwashing, you still have a chance. But John, sorry, shifting shifting over to you.

[00:23:16] John Cassell Yeah. I think, you know, in terms of legislated developments that we talked about earlier, you know, frankly, I think that's likely on pause for the next year with all the political changes in in Canada. So what we'll be looking at over the course of 2025 mostly will be types of disputes and regulatory action. So one, will the CAI, the Quebec privacy regulator, actually issue fines and directions? That piece of legislation has been in force now for a few years. So there hasn't really been enforcement actions taken by that regulator to date, but we're watching that in whether that will change probably to a unique type of claim that we see predominantly in the US called pixel litigation, which is really a claim based on web scraping and tracking individual's data, arguably without their consent and using it for targeted advertisements.

[00:24:15] Erin Brown So that's why I always get the pop-up advertising something, I just, you know, to text a friend that I wanted or something like.

[00:24:22] John Cassell That's exactly right. So really, there's been, I'll call it almost a flood of litigation in the in the US around this pixel litigation. And on the basis that collection of a consumer's personal information has been done without their consent. And it's contrary to privacy laws. We haven't really seen that in Canada yet, but we're watching that very closely. That's a big unknown for us, whether we'll see those types of litigation, you know, in Canada. And then finally, just always tracking a class action litigation arising out of data breaches in Canada is a big one. There have been recently various cases in Canada that have made it arguably more difficult to base a class action, based on a data breach. On the basis that you have to prove pecuniary loss, you actually have to have a loss. So when you have a large group of consumers who have suffered a data breach, you know, mere inconvenience that your data has been breached, arguably is insufficient to base a class action, at least past certification stage. But there's various torts across Canada that the plaintiff class are utilizing for those class actions. They're always evolving. So we're always watching, you know, if that remains the same status quo. So I think those are the big items from a litigation dispute perspective we're looking at in 2025.

[00:25:51] Erin Brown And John, you mentioned, you know, the political landscape in Canada. And for me, I mean, the elephant in the room in this discussion is the potential tariffs and what that might do.

[00:26:00] Ted Brook A lot of change. Yeah. François-David, I want to give you the final word. Is anything else you'd add and if someone wants to learn more about the findings of the report, how can they do that?

[00:26:12] François-David Paré So maybe one thing to add with respect to regulatory risk, and half of the Canadian respondents are looking for regulatory investigations and prosecutions to increase in 2025. So I would say that's probably the one thing that should be top of mind for GCS in-house counsel listening to this podcast, I mean, the rapidly evolving Canadian regulatory landscape demands a strategic approach to compliance, a robust compliance program. And so that would probably be your best way to contain risk on on this on this front. And in terms of how you can you can educate yourself on the on the survey, there is a, and in terms of getting to know more or learning more about this survey, there is a dedicated webpage available, and the link is going to be made available where you will have access to the actual report from the survey, but also a recording of a summit where experts from our US firm and and the Canadian firm as well will be providing you with the details of what's to come and what are the issues and trends that are top of mind for GCS in US and Canada.

[00:27:48] Ted Brook Fantastic. Excellent. Well, we'll make sure to link a lot with this podcast episode. And thanks, gentlemen, for, for joining us.

[00:27:55] François-David Paré For having us.

[00:27:56] Ray Chartier Was our pleasure.

[00:27:58] Erin Brown Always great to see you all.

[00:28:01] Ted Brook All right, Erin, you know, the Annual Litigation Trends Survey podcast episode is is becoming one of my favorite podcasts.

[00:28:09] Erin Brown Is it? What do you like about it so much?

[00:28:11] Ted Brook Well, I like this survey, because it brings me kind of like this sense of comfort. It's like every year it comes out and then you see what's new, what other in-house counsel are thinking about. Maybe you've been having anxiety about a particular issue, or maybe you've been trying to explain to someone why it's important. And then it's like, look, other people feel this way too. I'm not alone. You can show management. Yes. No, this is serious.

[00:28:37] Erin Brown There's a little something for everyone in the survey, right? No matter what your practice area is, you see different things represented. And I think and you might chat about this the other day when we were talking about the report, as you were saying, one of the positives in this year's report is that in-house counsel are feel more prepared to face the challenges compared to past years. So I think that's a really positive development, though, you know, not to not to end on on this point I keep hammering home we have to remember that the survey results are I think I think they were submitted in September. So we have you know, as as our guest mentioned today, we have really, you know, quickly evolving landscapes.

[00:29:13] Ted Brook Yeah, well, we should, you know, let our let our guests know that we're going to have some episodes coming out soon, certainly one on tariffs and the impact on on businesses and potential disputes arising from them.

[00:29:27] Erin Brown Yeah, we have a cross-border trade law task force between Norton Rose Fulbright Canada and US, which I'm a part of. And, you know, there's a lot of developments happening there. So I think we should we should get a couple of members of the of the task force to discuss, you know, sort of trends and risks and what businesses should be thinking about contractual clauses. Maybe you should just, you want to just interview me?

[00:29:53] Ted Brook And Erin, this is your space, like, this is where you're an expert, and I'm just going to be able to interview you because I have a lot of questions. And I know I know our clients have a lot of questions, too, so I'm really looking forward to that episode. Stay tuned, everyone, for that. Maybe, maybe a few weeks, maybe a few months. But it'll it'll be a good one for sure.

[00:30:15] Erin Brown And if you enjoyed today's episode, which we hope you did, don't forget to like and subscribe to our podcast on wherever you get your podcasts.

[00:30:24] Ted Brook Yeah. Thanks so much everyone.