S5 EP3 | Lights, camera, class actions: Recent trends in Canada

[00:00:07] Erin Brown And I'm Erin Brown. 

[00:00:08] Ted Brook Today we are talking about class actions. 

[00:00:11] Erin Brown We're happy to have Maya Angenot and Jeremy Devereaux on our podcast. Maya Angenot is a partner in the Montreal office of Norton Rose Fulbright. Maya's practice focuses primarily on complex commercial litigation, notably in the technology and engineering sectors, as well as class actions related to pharmaceutical and product liability and consumer protection matters. Maya also has in-depth experience in the management and settlement of multi jurisdictional class actions. Jeremy Devereaux is a partner in the Toronto office of Norton Rose Fulbright. Jeremy acts as an advocate and negotiator in a wide range of complex commercial and regulatory matters, including class actions. He has appeared as counsel before the Ontario courts, the Federal Court of Canada and numerous tribunals and arbitration panels. Welcome to the podcast Maya and Jeremy. It's great to have you. 

[00:00:54] Jeremy Devereux Thank you. 

[00:00:55] Maya Angenot Thank you. 

[00:00:56] Ted Brook So our topic today, Maya and Jeremy, is class actions, something that you both practice a lot and spend a lot of time thinking about. And I think we're going to focus a little bit on comparing and contrasting Ontario, Jeremy, where a lot of your practice is based, and Quebec, Maya, where, where your practice is focused. 

[00:01:18] Erin Brown And now before we dive in, obviously a lot of litigators and lawyers and law students that listen to the podcast, but not everybody is an expert in class actions. So to set the stage for our episode before we dive into some of the trends and unpack some of the interesting aspects of class proceedings, can you just very briefly set out for us the main ways in which class actions differ from regular proceedings? 

[00:01:43] Ted Brook I have have used the analogy of a car versus a bus, sometimes, when I when I'm trying to explain a class action compared to a lawsuit to members of my family. But Jeremy, maybe starting with you, what would you say are the main differences? 

[00:01:58] Jeremy Devereux Well, the main differences with an individual action, you know, your parties, you've got your plaintiff who starts the action and your defendant or defendants, they're all identified. And those are the parties before the court. The idea of a class action is that you can have a plaintiff who can represent a larger group of people who aren't individually named in the lawsuit. So, you know, group like and you want certainly defined as the class and the representative plaintiff seeks to have the right to bring the action against a defendant or defense on behalf of that whole group of people. 

[00:02:32] Erin Brown So they're driving the bus. 

[00:02:33] Jeremy Devereux They're driving the bus. And because of that, that means there's a stage in class actions that you don't have in individual actions, which is after you've commenced it. You then have to go to the court and you have to get approval to be able to proceed with the case as a class action, which is a step you don't need in an individual action. 

[00:02:52] Maya Angenot And I'll add that one one aspect that's interesting with class actions, at least in Quebec and in Ontario, is that there would call would we call a opt out jurisdiction. So everyone who is who falls within the definition of the class, as it's described in that original application is automatically a part of the class action unless they actually opt out formally and say, I don't want to be a part of this class because, for instance, I want to bring in my own individual action. 

[00:03:25] Ted Brook And so so so that kind of approval is really important then because people are going to be on the bus to continue using that analogy unless they put up their hands and say, no, I don't want to be part of part of this lawsuit. And I'm wondering, Maya and Jeremy, does that make the approval stage, the certification in Ontario with authorization in Quebec a focus point of the class proceeding? 

[00:03:52] Jeremy Devereux It is a focus point. It's a major focus point, particularly for defendants, because defendants will often, but not always be in the situation where they think that the action shouldn't proceed as a class action. And so they will put quite a bit of work into persuading the court that it's not the kind of case that should be certified to go forward as a class action. What I can say is as class actions have developed from sort of the mid-90s till now, there's been a general movement which is early on when the courts were not as comfortable with class actions, a significant number of proposed class actions were not certified the court, said that it wasn't appropriate for them to be class actions. As we move forward, the courts have had a higher comfort level with certifying class actions and a much higher percentage of them get through that stage and then move forward as a class action. 

[00:04:41] Maya Angenot And that's the case in Quebec, too. I would say that the trend really in Quebec has been especially in the last, I would say, 10 years, I would say something like 90 percent. I don't have exact numbers, obviously, but something like 90 percent of class actions are certified. And so it's very difficult to defeat one of the four criteria for certification of a class action. You also have to bear in mind that even if a class action is dismissed at certification, the plaintiff has a right of appeal, an automatic right of appeal, whereas the converse isn't true for the defendants. So if a class action is authorized, the defendant only has a right of appeal on on on request. 

[00:05:27] Ted Brook Narrower grounds. Interesting. And so both of you kind of talked about criteria. And I think we're going to ask you a few questions about how the the statutes that set out criteria for class actions have changed or develop. But just at a high level, what is the judge looking for? Like, what's the most important thing that a judge is looking for when deciding whether to grant that approval to a person who wants to turn a lawsuit into a class action? 

[00:05:56] Jeremy Devereux Sure. There's a basic sort of threshold issue that you've got to get over, which is you've got to show that you have a cause of action. Now, that exists in regular lawsuits anyway. But at the certification stage, it's part of the fact that the court actually has to look at that at that stage and decide if the statement of claim discloses a cause of action. But beyond that, the issue that gets the most focus is whether the proposed class action raises common issues. Issues that can be decided in common for the class members, because of course, every class member in any class action is going to be slightly different from each other. But the question is whether there are issues that they have in common that can be resolved on a common basis rather than having every single class member bring their own claim. And that's the focus of a lot of the inquiry at a certification stage. 

[00:06:47] Ted Brook Yeah. And Maya, is that the same in your experience, like commonality ends up being sort of the overarching question? 

[00:06:55] Maya Angenot It's interesting because commonality is certainly a criterion under in Quebec law as well as one of the four, and it is technically an important one. But I would argue that in the last few years, the commonality criterion is almost entirely dead in Quebec at least. And that started with the trend began with class actions in areas such as psychological harassment and sexual sexual assault. And you would think that the classes in those cases would be highly variable because the facts are necessarily extremely individual in cases of psychological harassment and sexual assault. You know, and this came out of the MeToo movement a few years ago, and even so, courts began authorizing these types of class actions in any event, and determined and concluded that as long as there is one quite minor issue that can be said to be common, even if all of the other issues are highly individual, the Quebec courts will allow the class action to go ahead in any event. So it's a little bit different. And we're really focused on the defendable cause of action criterion in Quebec instead. 

[00:08:15] Erin Brown That sounds like it could lead to some very complicated class actions with a lot of sort of sub-issues and classes of of issues and arguments. And how do you manage that complexity? 

[00:08:27] Maya Angenot Yeah. And it's interesting because courts ultimately just say that as long as as long as that one single issue may advance the class action even a little bit, we'll just deal with that at the stage of what they call mini trials, which obviously are quite individual, particularly in these types of cases that I'm mentioning. And we had a case this year that went all the way to the Court of Appeal where the superior court had actually dismissed certification, refused to certify the class action on the basis of commonality criteria. And it was a, there was a question of bad faith. And essentially the first instant judge said, the question of bad faith is such a fact specific and individual determination, depending on who the class member is and each individual class member. And so it dismissed certification and the court of appeal overturned that decision, stating that there could be, there conceivably, essentially, there conceivably could be a modus operandi that demonstrates bad faith on the part of the defendants and therefore, we're going to let this class action go ahead. 

[00:09:39] Erin Brown Is this broad approach sort of linked to access to justice? Like do the court's view it as well, if we can let these matters go ahead and let more, you know, plaintiffs be involved in this without having to launch their own actions with their own legal fees and individual lawyers, then we have sort of a better access to justice for these issues as that's kind of what drives what's driving that trend to being more permissive, I guess, of differences in individual cases within a class action? 

[00:10:05] Maya Angenot I would think, Quebec, yes. It's very much. There's very much a public policy kind of thing underlying why class actions are so prevalent in Quebec, why Quebec is known as a class action haven. A lot of class actions in Quebec are in areas of consumer protection and product liability and that kind of thing. So it makes sense, I think, in those areas I understand why it makes sense in those areas when the payout might be so minimal to allow class actions and certify class actions if they make some semblance of sense and if they make sense legally. Now, we can get into a whole other discussion about whether more major liability cases should go ahead in class as class actions. 

[00:10:59] Ted Brook Is that case you mentioned, the Quebec Court of Appeal case this year was that the Leduc decision. 

[00:11:05] Maya Angenot Yeah, it was. It was Leduc v. Elad decision that went to the court of appeal and that where the court of appeal kept on and has maintained its position that the commonality is certainly a ground but arguable arguable to what extent. 

[00:11:26] Ted Brook We'll put that citation in and then the show notes. But Jeremy, commonality, it's still important in Ontario. But are you seeing sort of similar trends to what am I saying in Quebec? 

[00:11:39] Jeremy Devereux I think we've seen similar trends over the course of the development of class actions. You know, I think at first, judges were tend tended to look at things and say, well, you know, okay, there's a couple of things that these people have in common, but they're not much they're not that important. And then that as time went on, much like Quebec courts were more willing to say, well, there are some common issues here that will advance the claims of the class members. And and to Maya's point, the sort of access to justice saying, well, this will these claims ever really go ahead if it's not by way of a class action? And so, I think that's right. And I think the access to justice issue was really what drove a lot of that. What's interesting, though, is what we've seen in Ontario is we've had some legislative changes that I think are going to have an impact on that. How much impact you want to see? 

[00:12:28] Ted Brook Is that the are you referring to the the modernization amendments a few years ago? 

[00:12:34] Jeremy Devereux Yes. 

[00:12:34] Ted Brook Okay. 

[00:12:35] Erin Brown To the Class Proceedings Act. 

[00:12:36] Jeremy Devereux Yeah. So so let me touch on that one, because I think it goes it's directly relevant to this issue. Effective October 1, 2020, there were some amendments, substantial amendments made to the Class Proceedings Act in Ontario. And what I want to talk about right now is there was a they added in a subsection to deal with the issue of preferable procedure and how the courts are supposed to interpret that. And the reason that's important is because we talked about the cause of action and we talked about commonality. But the other thing that the courts in Ontario are required by the act to look at is whether a class action is the preferable procedure for the resolution of the class members claims. 

[00:13:17] Ted Brook So is there somewhere else or somewhere better that could be adjudicating their dispute? 

[00:13:24] Jeremy Devereux Is is there something preferable to, you know, is the class action preferable to other means? And so the idea there is, even if there is commonality, there's still a further requirement. Okay, well, there's commonality. Some commonality among the class members. But does that make this the preferable procedure for resolving those issues? And so what the Ontario legislature did is they added a provision that said that a class proceeding is the preferable procedure for the resolution of common issues only if at a minimum, those the exact words of the statute. First, it is superior to all reasonably available means of determining the entitlement of the class members to relief. So basically, it's got to be they're making it clear it's it's got to be better than superior than the alternatives, not equal to, it's got to be better. 

[00:14:17] Erin Brown That's interesting. So if it's only equal to presumably you have to figure out what that other mechanism is and pursue it that way by and you're barred from class action. 

[00:14:27] Jeremy Devereux Right. And for those of us on the defense side, we look at that and see there's a public policy reason for that, which is when you're authorizing a class action, you're putting in place a very large, expensive and complicated mechanism. And so for the legislature to look at that, say, okay, if you're going to do that, you've got to show that that's superior to existing rights these people already have. 

[00:14:48] Erin Brown Which is normally what what's normally the other equal or potentially better? Is it arbitration or regulatory procedures? 

[00:14:56] Jeremy Devereux In the ordinary course, it would be in many cases for contract claim or something, it would be a civil lawsuit. But many class actions deal with matters for which the government's already set up remedy. So, for instance, we're seeing lots of employment class action. Those people generally all have the right to go to the Employment Standards Board or similar to bring their claim forward and have essentially a free adjudicative process. So basically there are lots of times when you have class actions where there is a government set up remedy that is at no cost to the people. So when you start looking and saying, well, the class action is going to be superior to that, that's setting a higher bar than we have now. 

[00:15:36] Ted Brook It's especially interesting when we're also talking or Maya's mentioning class actions that involve a low level of commonality between the claims of individuals. So Erin's point getting really complex, getting really difficult. You may only actually have small issues in common to adjudicate, and then everyone's off to individual trials anyways to deal with their own personal damages or unique circumstances. And so then is, is is the mechanism, the class action vehicle superior? If everyone is only going a little bit together, then they have to get off of the bus and travel on their own paths to actually get a final result. 

[00:16:17] Jeremy Devereux Exactly right. And in fact, that specific issue, which there's some discussion particularly early on in the case law and class action in Ontario, also got addressed in the amendment where they said, that for the class action to be the preferable procedure, the questions of fact or law in common to the class members must predominate over any questions affecting only individual class members. So it now specifically said, which in some ways I think puts us back to sort of where we were at the beginning and says, no, no, you it's if you let these it's not enough for the court to have say, we've got these three issues. They're not, they don't predominate over what's going to be left to be done individually. But that would prioritize amendments in many cases would be enough for the action to be certified. Now, according to the amendment, that would not be. Binding some small common issues, as I read, the section is not going to be enough to get you over the threshold. 

[00:17:11] Erin Brown So this seems to be an area in which Quebec and Ontario are diverging a little bit in approach. 

[00:17:16] Ted Brook Absolutely. I think I think you're right. I mean, Maya, when you hear that and you hear about the the new definition of preferred or procedure in Ontario, is there anything akin to that under the Quebec regime for approach and authorization? 

[00:17:32] Maya Angenot Not at all. And I was listening to Jeremy speak, and I was thinking, wouldn't it be great if the Quebec legislature got inspired by with whatever is happening in Ontario? But unfortunately, it really is. It's almost like we're going the opposite direction in Quebec, unfortunately. 

[00:17:49] Ted Brook Yeah. And it's a powerful tool, the class action, but having some type of protection to ensure that it's used, where it's going to actually have a benefit in terms of aggregating claims. I don't know, it makes sense to me. 

[00:18:01] Erin Brown Particularly, Ted, if it if it's really intended to be a, you know, an access to justice issue, you don't want it to be misused to make more complexity and more issues for the people who we're supposed to be, the process was supposed to be to be simplified for. But for, Ted, go ahead. 

[00:18:19] Ted Brook I was just going to pause because I think we're all traveling with this idea, but don't make sure our listeners are. When a class action is approved or authorized or certified, the judge isn't deciding the case. All they're deciding is that you're allowed to move forward as a class action. Right. So everything we've been saying is just about what vehicle are you allowed to take as you pursue your your claim? 

[00:18:46] Erin Brown Yeah. The busses leaving the station, but not reaching its destination. When is, is this is this going to get old? [00:18:51]This like, bus analogy. [1.2s]

[00:18:53] Ted Brook That's what that's what our podcast is going to be. 

[00:18:55] Erin Brown And so, Jeremy, just to come back for a minute to the modernization of the Class Proceedings Act. Are there any other notable provisions that were introduced or changed? 

[00:19:07] Jeremy Devereux There is. The other one that I find the most notable is there's now a provision calling for mandatory dismissals for delay of class actions that have not been certified. And so, again, this is the same effective date, effective October 1, 2020. And this is for all actions going forward. I should add the the amendments that I just talked about before. Those are for actions commenced after October 1, 2020. So we've got two sets of tests right now. But this new provision about dismissal for delay applies to everything, no matter when it was commenced. And what it requires is this is it says that the court shall dismiss for delay on a motion any class proceeding if by the first and a reverse of the date on which it was commenced or for older ones for a year from October 20, October 1, 2020. And do you have to do one of the four following things? First, the representative plaintiff has to have filed their final and complete motion record, so all their affidavit materials have to be filed with the court or the parties have agreed in writing to a timetable for service of the materials and other steps, and they filed that with the court. So not an informal agreement has to be an agreement that's filed. Third, the court itself has established a timeline for the materials. And say, ordering, this is what you're going to do. Or the last one is any other steps or circumstances specified by the regulations, there's no regulations yet. So we really just have those three grounds. Now, what's interesting is the change in the test, the preferable procedure test I talked about, there's been a few cases. Nothing seem to turn on it in those particular cases, on the five source cases. There's actually been a whole bunch of dismissal for delayed decisions already. By my count, there's at least nine decisions of the court. And in six of them, the court dismissed the action for delay. 

[00:21:12] Ted Brook Coming down hard. Yeah, just to put a pin on that. So you're saying a party bringing a proposed class action has essentially one year from the date that they're commencing it to serve motion materials requesting their their certification or their approval of the class action or to establish a timetable that they get sanctioned by by the court. And they're not. I think some sometimes I think we're both so used to this because because we deal with scheduling of certification motions. But I think that idea might be surprising to people that the deadline is 12 months simply to to ask the court to approve their ability to bring a class action. So so why does it take so long? I feel like a lot of clients are asking, why would it take anyone so long to serve a request to have their lawsuit approved as a class action? 

[00:22:06] Jeremy Devereux There's a bunch of reasons and they can vary depending on the case. You can have a case with the most diligent lawyers in the world, but their certification materials may actually be really complicated. So, for instance, they may have certification materials that require numerous expert reports to support their argument that there is commonality just to sort of flesh things out. Now, those diligent lawyers generally already, even before this rule, generally got a timetable dealt with the judge. So they probably were okay anyway. I think the cases we're really dealing with in a lot are the ones that are these ones where there's often a rush to be the first out of the gate to commence a class action when you're a plaintiff class action wire because you want to be the one who started it before another law firm does. And so you'll get law firms who will start a class action, when they're not actually sure they want to go ahead with it, but they just want to get it out the door. And then they kind of lose interest or they're not sure or they're having trouble getting supporting materials and they just kind of sit on it. But on the other hand, they're not ready to just walk away. So I think you get a bit of that and then you just get some people who just are not pursuing the case diligently. So I think it's a bunch of reasons. But now I'm with you. It's it's a year doesn't seem that demanding to file a motion record for it for a case. But what we've seen is it was it's certainly not uncommon for plaintiff's lawyers to take that longer or longer. 

[00:23:36] Erin Brown And so just to pause our discussion there for a second, bringing it back to Quebec, Maya, is there anything like this in Quebec in terms of the concept of dismissal for delay? 

[00:23:46] Maya Angenot So it's it's interesting because there's no legislative provision akin to the one in Ontario, but practically speaking, it is the same thing in Quebec. So plaintiff's counsel is not entitled to just park his case in the court record. The way it works here and I'll take the example of Montreal, which is where most class actions are filed in Quebec, there are ten case management judges for class actions that at the certification stage in Montreal. And every time a class action is filed here, one of those judges will be assigned to the class action and will write to the parties immediately within a couple a couple of weeks after service. And will will essentially push the parties along over the course of that first year, making sure that preliminary motions are filed, if there are any, making sure that the parties set a calendar all the way up to certification, all the way up to the certification hearing, from the very get go. And and usually what we're expected to do, unless it's an extremely complex class action with extremely complex legal issues that have to be argued at certification is that parties are expected to [00:24:56]hold the sets [0.3s] to schedule the certification hearing within a year or I would say a year and a half maximum from the time of service. So it is kind of the same. And if parties and if the plaintiff counsel wants to park his case, then he'll have to bring a formal stay motion and argue why that stays is a good idea. 

[00:25:20] Ted Brook Our judges resistant to that, the the specialist judges that that you deal with? 

[00:25:25] Maya Angenot So it depends, you know, there are reasons why a judge would be very receptive to some some stay motion. So oftentimes in multi-jurisdictional class actions or these kind of major toward class actions, there are parallel proceedings in the US or elsewhere in Canada. And the outcome of those, either because they're further advanced or because parties might be having settlement discussions, could very much influence the case in Quebec. And so in those cases, judges are very receptive to the idea that, well, why don't we stay the case? You know, you might end up with a discontinuance that would benefit the court system and the parties. 

[00:26:07] Erin Brown It sounds like we're sort of seeing a difference between Ontario and Quebec in terms of the substantive test for certification, but maybe a little bit more commonality in terms of the approach to dismissals for delay or really the requirement to move something along fairly quickly. And maybe that little summary goes well with your pivot, Ted. 

[00:26:24] Ted Brook So Maya and Jeremy, as you know, the firm's litigation trends survey report gets released at the beginning of every year. And Erin and I were chatting with a number of our lawyers about it on an episode, I think back in March or February. 

[00:26:41] Erin Brown Bunch of episodes. 

[00:26:43] Ted Brook We had a few episodes about it. But anyways, I remember that one of the things from the report is that the respondents who are who are clients and businesses and in Canada, in the US, those who were concerned about class action said that employment and labor class actions were their highest concern. 

[00:27:02] Maya Angenot In Quebec, we're seeing more and more of these popping up. The trend began around 2020 with this case called Godin c. Aréna des Canadiens, where employees of the Montreal Canadiens sports complexes allege that they weren't paid sufficient overtime and that the system for tracking overtime was so complex that it actually wasn't really tracking overtime at all. And. And it went up to the court of appeal. The first judge had actually dismissed certification for technical reasons, and then the court of appeal reversed that decision. So since then, set the wins in the sales of of class action plaintiffs lawyers. And we've had we've had a few, including this year. 

[00:27:49] Erin Brown And Jeremy, what about the trend in Ontario with class action, employment, labor class? 

[00:27:54] Jeremy Devereux We've seen similar things. I think, ours started to pick up a little bit before that, probably by 2019 and picked up. And the class actions in Ontario, the flavor of the of the month seems to be the vacation and holiday pay class action. We had a bunch of over time class actions in Ontario, including ones against CIBC and Bank of Nova Scotia that started back in 2007, 2008, took their quite a ways to work through the system. We thought there were going to be a lot more overtime class actions after that. There actually weren't that many after that. But then starting in about 2019, we started to get a bunch of these statutory vacation and holiday pay class actions. And there have been a whole bunch, not unlike Quebec, and they were still in some ways partly because a bunch of them have gotten a certification. They've generally been certified as class actions. But we're going to be waiting longer before we see them either settled or decided on the merits. So we know from those that they're getting certified. But what ends up ultimately happening, we're still you know, we're still waiting to see. The other thing that's come up is there's been quite a few cases involving the issue of whether individuals are employees or independent contractors and the consequences that that has to their benefits, including things like statutory vacation and holiday pay. So there's been a bunch of those cases. 

[00:29:20] Erin Brown And then coming back to another trend from the Litigation Trends survey. What about cybersecurity or data protection related class actions? What have we seen in that pace so far, Maya, in Quebec for 2024? 

[00:29:34] Maya Angenot You know, it's it's really interesting in Quebec because we are seeing so many more of these class actions in the province in the last few years. And it's probably spurred also by some of the federal and provincial amendments to privacy legislation. But very, very, very few have, first of all, very few have made it to the merits. And the one case that made it to the merits, essentially, the judge said that that there were no damages, there was no actual loss, and so did not grant any damage damages. So so it's interesting, the class council nonetheless keeps on filing these. It's difficult in those cases to show actual loss. And so that courts have taken, Quebec courts have taken the position that the mere breach or the mere effect of privacy data or leak of privacy data will not be sufficient to grant damages. So there have been there have been a ton. There was that last year there was Wa Yi v. Capital One Bank, which was a class action that followed a cyber breach which led to unauthorized access of credit card information. And the court held that there was sufficient evidence the defendants had and deployed all required means to protect the customers information. So that was certified, but it's still making its way through the court system. We'll see if there's actual damages at the end of that. There was a class action against Home Depot this year, where Home Depot was allegedly sharing customer personal information with Meta and Facebook. The action was certified, but on a very narrow basis, only on the basis of the Quebec Charter of Rights and Freedoms. And then there was another big case that came out this year against Google, where Google was using biometric facial data and it was certified. But the court again specifically ruled that in that case there was sufficient evidence of actual damage, including out-of-pocket expenses that had been that had been incurred by class members. But again, many cases have not been certified because at this or at the authorization stage, the class counsel and the plaintiff wasn't able to show loss, actual loss beyond the legislation being being contravened. 

[00:32:10] Ted Brook So two things, I just want to I want to pick up on there, which are interesting, Maya, is a case can be authorized and be moving forward and then get dismissed because no damages. And so it's interesting that it can you can you have a case travel for years after authorization and sort of permission from the court? But that's no guarantee that it's actually going to result in a final decision. 

[00:32:32] Maya Angenot No, absolutely. And I'm the one I was talking about earlier, the only one that actually went to the merits on this, Lamoureux , it's called Lamoureux c. Organisme Canadien de réglementation. It was, the court ended up finding that the privacy legislation was, in fact, breached because there was a leak of personal information of the members, but that since nothing came of that breach, since since the data had been lost, but it hadn't been used fraudulently or anything like that, and credit cards warrant or compromised or anything, there was no damage. And so granted zero dollars. 

[00:33:17] Ted Brook Interesting. And and then another thing that that I picked up on was like that as, as we well know, Jeremy, is the class definition in the structure of the class can be narrowed, had certification or authorization in a way that really impacts the shape of the lawsuit going forward. But I'm wondering, Jeremy, I think you've you've looked into this maybe briefly, but but how are things shaping up? What are we seeing in terms of cybersecurity and data protection, class actions in Ontario? 

[00:33:51] Jeremy Devereux Well, we're seeing again in the sort of build up like up to this year, there were a bunch that were filed. In fact, I think we sort of assumed every time there was a major publicized cybersecurity, someone would start a class action about it. Whether it moved forward or not was a separate matter, but generally somebody would do that. But what's interesting is there's a there's a very careful decision by Justice Perel in a case called, Del Giudice v. Thompson, which is also involving the Capital One cyber breach. And Justice Perel released a decision in January on that case on certification. And basically, he dismissed the application for certification and he carefully considered it. And what they had done there is they had pleaded the point of a pleaded numerous causes of action against the defendants out of the cyber breach, all sorts of things, including intrusion upon seclusion. My favorite new cause of action in Ontario. They pleaded all sorts of stuff at the end of the day, what Justice Perel said, is on these facts, there aren't any damages. And you haven't been able to plead damages, you can't show damages. And so not only was it was it not certified, the claim was struck without leave to amend and certification was dismissed. That went to the court of appeal, which entirely agreed with the motion judge. And then they sought leave to appeal to Supreme Court of Canada. That application for leave was dismissed on September 19th of this year. So what we have is it's very much like the the the case in the situation in Quebec, which is judges may look at this and say, yeah, that's a privacy breach or [00:35:35]their sense, Maya, [0.0s] right. Like, I'll take that as a given for the purpose of the motion. But the problem is, from what you've said to me, is there is no there's no there are no damages, so there's nothing for you to sue for. So basically they say on that basis you don't have a claim. The class members don't have a claim against the defendant. So even though, you know, and that's I find that really interesting. Because I think prior to some of these cases that really spelled it out, I think there were a lot of plaintiffs lawyers who just thought, well, it's a terrible privacy breach, surely I'm going to get something for the class of that. And interesting, we had both we had both the motion judge and the court of appeals just saying no, absolutely striking it out. So I think that's interesting. And it's I think it's it's going to be really interesting to see what happens to these cyber breach cases as a result of these line of cases and whether it's really going to just reduce the numbers to cases where you can show some kind of losses or whether we get really creative plaintiff's lawyers. 

[00:36:35] Ted Brook More creative pleading. Yeah, a different way to frame because it's a cause of action problem, right, I assume from from those decisions. 

[00:36:43] Maya Angenot Yeah. And it's a it's an allegation issue, right. They've gotten crafty in alleging at least some sort of loss, even if it's a minor out of pocket loss, like, I had to monitor, I had to monitor my credit cards or I had to hire some sort of firm to make sure that my personal information wasn't used in in a fraudulent way or something like that. So as long as as long as you have those allegations, it'll pass certification. But if they keep getting thrown out on the merits, like Jeremy said, I'm wondering if it's just going to end up disinterest in class counsel, which which is probably the case. 

[00:37:21] Ted Brook One question that has been on my mind a lot and Maya knows this because we've been dealing with with a case together where this issue has come up a lot, and that's the attack of the bots. We're getting claims, I don't know if it's A.I. or if it's simply algorithms that are geared towards finding claims, processes and making submissions. But it's something that I never thought would be on my mind this much. And I'm curious, Maya or Jeremy, if you would sort of I'm curious if if you are also thinking about these issues and sort of if you have any thoughts on how it's impacting the settlement administration process in class actions in Canada. 

[00:38:03] Maya Angenot Yeah. You know, I'll say a few words on a situation I had recently where defendants really have to be aware of this potential issue. Oftentimes in the context of a of a settlement negotiation, defendants will will bear the costs of settlement administration. And oftentimes those are estimated in the settlement agreement. And then they'll negotiate that that price with the settlement administrator. But, you know, bot attacks or fraudulent claims being filed by, in some cases hundreds of thousands of of false class members can mean hundreds of thousands of extra dollars tacked onto those to that settlement administration costs and in some cases can cost more than the actual legitimate settlement administration costs. So I think defendants will need to be very mindful of that possibility, both in their negotiation with the settlement administrator early on in that process and make sure that the settlement administrator has the the measures in place to curb that those fraudulent claims, whether those are firewalls or A.I. or whatever else you want to put in place, and also be mindful of it in the context of settlement negotiations. There can be good reasons to to not have defendants bear the entirety of the settlement and restoration costs, and that could be part of the negotiation. There could also be reasons to reopen negotiations or a settlement agreement on that basis if, in fact we're talking about half a million dollars additional instead of settlement administration costs just because of these fraudulent claims. 

[00:40:03] Ted Brook I think you made a really good point. Just like there are some very talented settlement administrators who who are now focusing their efforts on how to identify and eliminate fraudulent actors that go beyond just captcha or requiring, you know, a sign in. And but still, it's sort of one step ahead in defending against bots and bad actors who game, trying to game the system, take another step right to get around it. So it's constantly evolving. I don't know, Jeremy, what are your thoughts on sort of or what words, what advice would you have to clients who are contemplating a settlement and then they're thinking about, well, what what do I need to keep in mind for the administration? 

[00:40:46] Jeremy Devereux One of the things I think and I think Maya hit this head on, which is you want to deal with this issue during the negotiation of settlement. You do not want to leave it for the point at which the problem's emerged, because then you're either your client is either going to be stuck paying it or you're going to be in a big fight about who pays it, neither of which you ought to be in. So I think that I agree with that 100 percent. Good thing, I think is this is is that it also drives this, I mean, Ted, as you said, there's some very good class action administrators. One of the things you want to keep in mind as a defendant is even if you are paying 100 percent of it, it may be in your interest not to go with the cheapest administrator, because the cheapest administrator may not have the processes you need to prevent this kind of fraud and you may end up paying them more, even though the initial cost looked like it was going to be less. So you really want to think long term about the potential problems. And for instance, if you had an administrator who doesn't seem to understand it or doesn't have any processes or can't describe their processes, you want to think about that and talk to some other administrators about what they can do for you. 

[00:41:54] Ted Brook Yeah, absolutely. Because he's a defendant who is who settle the case. Even if they deny liability, they've reached a settlement. They have an interest in ensuring that it's their actual customers or their actual employees who are being compensated, not, you know, bots or organized crime and another part of the world. Right? So I think at that stage, the interests of all the parties are aligned. It's just figuring out how to do it efficiently and sort of protecting the integrity of the process to ensure that, you know, the court who has approved the settlement and the settlement process is also confident and and comfortable with what's taken place. 

[00:42:34] Maya Angenot I don't think it's made its way to a court the specific issue, at least not in Quebec yet, but it might, it might because it's going to become more common, unfortunately, given the nature of technology these days. And we'll see what the courts say about about, as you said, at the, you know, the integrity of the whole process and the integrity of the settlement administration process. 

[00:42:59] Erin Brown I'm not sure that we have an attack of the bots analogy for for a bus, for a bus situation. But Maya, Jeremy, this has been a fantastic ride with both of you talking about class actions. I know I've learned a lot. I hope our listeners have as well. And I want to thank you both for chatting with Ted and I today. 

[00:43:18] Maya Angenot Thanks so much for having us. 

[00:43:19] Jeremy Devereux Yes, thank you. 

[00:43:23] Ted Brook All right, Erin. Really interesting. And it's surprising despite the differences between the common law and the civil system. There are so many similarities in how they've approached class actions. And I think that stems a lot from the same overarching access to justice and procedural fairness goals arise, right? We're trying to resolve an aggregate number of claims, but we're trying to do it fairly. And so those those tensions are. 

[00:43:53] Erin Brown And efficiently too. 

[00:43:54] Ted Brook And efficienctly. Yeah. So every province is trying, in Canada, there's a few territories that use common law class actions rather than statutory class actions. But every province, I think, recognizes that this is a need and they're trying to balance how to do it fairly and efficiently and effectively in so different ways. 

[00:44:15] Erin Brown Yeah, I mean, to bring it back to our overarching theme or our overarching analogy, here is that we all know that sometimes a bus can be really efficient and low cost way of getting you from point A to point B, and sometimes you got to take your own car. 

[00:44:29] Ted Brook Sometimes you need to drive your own car or bicycle or just walk. Yeah, but so great, Erin. What do we have up next on the list? 

[00:44:39] Erin Brown Well, I think I would love to have a conversation about judicial reviews in administrative action. I think that could be a really interesting topic. 

[00:44:48] Ted Brook It sounds good. And for everyone listening at home, feel free to subscribe to us on Apple Podcasts, Spotify or wherever you listen. And please feel free to reach out to Erin if you have any comments or questions.