A Snapshot of the Most Notable Developments in Class Action Litigation

In the fast-paced realm of class action litigation, 2023 ushered in noteworthy changes, impacting businesses from provincial courts to global landscapes. In this Five Under 5, we review significant cases from 2023 and outline key changes and trends.

1. Arbitration Clauses. In Williams v. Amazon.com Inc., the British Columbia Court of Appeal upheld a partial stay in a proposed consumer class action. The court found that an arbitration agreement in electronic conditions of use was valid and enforceable. This decision, along with other recent appellate-level decisions, confirms that, in the absence of clear legislative intervention to the contrary, arbitration agreements will generally be enforceable, even in standard form contracts of adhesion.
2. Climate Change Litigation. While most climate change litigation has taken place outside of Canada, the intensification of global weather events means the potential for domestic litigation is growing. Disputes will likely centre around greenwashing allegations, direct claims for climate-induced damages and securities misrepresentation tied to climate change assertions.
3. Quebec Trends. Quebec's Court of Appeal continues to favour a low threshold for the authorization (certification) of class actions in the province. A notable case from 2023 involves a class action against Google's use of biometric data, which emphasized that if facts in a complaint are alleged precisely enough, very limited supporting evidence is required. 
4. Post-Certification Decision. As a result of the Quebec Court of Appeal decision in Fortin v. Mazda, plaintiffs in Quebec face a higher bar to prove economic harm in consumer class actions. As class actions progress to the merits stage, consumers, guided by plaintiff's counsel, must quantifiably demonstrate the economic fallout caused by misrepresentation, a trend echoing across common law provinces.
5. Privacy Class Actions. In August 2023, the B.C. Court of Appeal upheld a judgment finding that that the defendant was vicariously liable for breach of a provincial statutory privacy tort. This was a rare merits decision in a case where an employee stole and sold personal information. The Court of Appeal also allowed baseline general damages for the statutory privacy tort without needing individual proof, potentially setting a precedent for future class actions.

Have more than five minutes? Contact any member of our Class Actions group to learn more, or view our recent webinar on this topic with Blakes Partners David Tupper, Nicole Henderson, Karine Russell and Simon Seida.