On Litigation

In a series of LinkedIn posts (compiled below), I am posting about litigation and legal practice under the banner “On Litigation”. The goal is to build a connected series of short reflections on what it means to be an effective litigator – one post at a time.

Paul-Erik Veel | January 28, 2026

When Price Drops Prove Too Much: Rethinking Materiality in Secondary Market Misrepresentation Class Actions

In secondary market misrepresentation cases, materiality does an enormous amount of work. It is the gatekeeper: no material misrepresentation, no liability. Courts therefore look for proxies – ways of inferring whether an alleged misstatement was “reasonably expected to have a significant effect on the market price or value of the securities.”

Paul-Erik Veel & Brian Kolenda | January 8, 2026

Statistically Significant, or It Didn’t Happen? Corrective Disclosure Under the Securities Act

In Terry Longair Professional Corporation v Akumin Inc, the Ontario Court of Appeal addressed the question of whether a securities class action can be pursued for misleading or incorrect statements, even if there was no statistically significant decline in share price. The short answer is yes, at least as far as the leave and certification stages are concerned.

Paul-Erik Veel & Christopher Yung | September 9, 2025

Federal Court Rejects Class Action for Treaty 4 Annuity Claims: Representative Action Ordered

The Federal Court’s recent decision in Chief Derek Nepinak and Chief Bonny Lynn Acoose v His Majesty the King is a significant procedural decision that could have implications for many cases asserting Indigenous rights. The specific issue in this case was whether claims for the indexation of Treaty 4 annuity payments should proceed as a class action or as a representative proceeding. However, the case potentially has broader implications. The outcome clarifies the procedural path for collective treaty rights claims. More generally, this case highlights the multiple procedural vehicles available to assert group claims and demonstrates that class actions are not the only available tool.

Paul-Erik Veel | June 9, 2025

The Duty of Good Faith Does Not Extend to Pre-Contractual Conduct

Since it was recognized a little over a decade ago in Bhasin v Hrynew, the contours of the organizing principle of good faith and the duty of honest performance in contract law have been gradually clarified by Canadian courts. Most recently, in Ocean Pacific Hotels Ltd v Lee, the British Columbia Court of Appeal considered whether the duty of good faith applied to pre-contractual conduct. In particular, the question in this case was whether an employer’s conduct before an employment agreement was finalized could be scrutinized under the duty of honest performance. Answering that question with a resounding no, the Court of Appeal’s decision provides critical insight into the evolving boundaries of good faith obligations in Canadian contract law.

Paul-Erik Veel | March 6, 2025

Supreme Court: Canadian Governments Can Join in Class Actions to Pursue Redress for Cross-Border Harms

Canada’s federal structure means national class actions naturally raise potential constitutional questions. Those questions become potentially more thorny where a class action is pursued not on behalf of individuals across multiple provinces and territories, but instead provincial and territorial governments themselves. The Supreme Court’s recent decision in Sanis Health Inc v British Columbia addressed many of those concerns and ultimately defined a broad scope for national class proceedings, including where a proposed class includes other provincial or territorial governments.

Paul-Erik Veel, Brian Kolenda & Jonathan Chen | December 2, 2024

On the Horizon: Legal Complexities Intersecting Generative AI, Class Actions, and IP Law

The multifaceted nature of generative AI is bound to create legal complexities at the intersection of intellectual property law and class actions, as this emerging technology disrupts not only the tech landscape but the legal one too. 

Jordana Sanft & Paul-Erik Veel | May 6, 2024

Getting Leave to the Supreme Court of Canada: 2023 by the Numbers

Our readers know that we maintain a database that includes information relating to every Supreme Court of Canada leave decision from January 1, 2018 onward. While we use that database to maintain a machine learning model to predict the likelihood of particular cases getting leave to appeal, we also use it to look at trends at the Court more generally. In this blog post, we provide a year in review of the Supreme Court of Canada’s leave application decisions in 2023.

Paul-Erik Veel | January 15, 2024

Consultants’ Liability for Bad Advice: Just to Their Clients, or Does It Go Further?

Commercial disputes between professionals and their clients are routine. However, what is comparatively rare are disputes between the consultants (or other professionals) who advise a client and the client’s customers who may be harmed in some way by that client’s conduct. In those circumstances, there is generally no contractual relationship between the consultant and the client’s customer, and most cases have held that there is no duty of care between a professional and a person injured by the professionals’ client’s conduct. Lawyers, for example, have been held to potentially owe duties of care to non-clients in only the most exceptional circumstances. However, the recent decision of the British Columbia Supreme Court in British Columbia v McKinsey has the potential to substantially expand the scope of claims brought against professionals by persons allegedly harmed by those professionals’ clients’ conduct.

Paul-Erik Veel | October 20, 2023

Challenges in Spotting Material Changes

The philosopher Heraclitus observed that “the only constant in life is change”, a maxim as true for the business world as the natural world. Publicly traded companies operate in a dynamic environment, where commodity prices swing, new laws are passed, and scientific breakthroughs are made. So long as those companies wish to maintain their access to public markets, they must carefully consider how day-to-day happenings (and their own reactions to those events) affect their continuous disclosure obligations. These disclosure judgements are fact-specific and often fast-paced, yet they carry potentially significant consequences.

Paul-Erik Veel & Christopher Yung | May 29, 2023

Intrusion Upon Seclusion Without Being the Intruder? The Ontario Court of Appeal Limits Claims Against Database Holders

Last Friday, the Ontario Court of Appeal released decisions in Owsianik v Equifax Canada Co, Obodo v Trans Union of Canada, Inc, and Winder v Marriott International, Inc—a trilogy of decisions clarifying whether the tort of intrusion upon seclusion applies to the owners of databases when there are data breaches caused by third party hackers. Thankfully for database owners, the Court of Appeal concluded that intrusion upon seclusion cannot apply in those circumstances.

Paul-Erik Veel & Brianne Westland | November 28, 2022

Variable Insurance Over a Class Period: Does a Substantive Problem have a Procedural Solution?

It is often said that the Class Proceedings Act, 1992 is a procedural statute, not a substantive statute. What that means in practice is unclear, given that different procedural rules can have an impact on substantive outcomes. However, even a narrow version of that claim—that the Class Proceedings Act does not grant the Court jurisdiction to create or extinguish substantive rights beyond what the Court could do in an individual claim—is very much up for debate. There are increasing examples of creative judges using provisions under the Class Proceedings Act to take steps that impact substantive rights in a manner that would be impossible in an individual claim. The Court’s recent decision in Cavanaugh v Grenville Christian College presents such an example.

Paul-Erik Veel & Nina Bombier | October 6, 2022

Same Titles, Different Jobs: The Challenges of Misclassification Class Actions

Employment law misclassification class actions are becoming increasingly common. In those cases, the plaintiff says that employees have been misclassified by their employer in such a way as to render them ineligible for certain benefits under applicable provincial employment standards legislation which the employee claims that they should have been eligible for. The two most common categories of alleged misclassification are employees being allegedly misclassified as independent contractors, and ordinary employees being misclassified as managers. While some misclassification cases have been certified, courts have refused to certify many others due to a lack of sufficient commonality. The recent decision of the Ontario Superior Court of Justice in Le Feuvre v Enterprise Rent-A-Car Canada Company is an example of a case that falls into the latter category and was not certified.

Paul-Erik Veel | July 26, 2022

Rebuck v Ford Provides More Fuel for Defending False Advertising Class Actions

Historically, many class actions practitioners considered certification the primary fight in a case. It was common that cases would settle not long after certification, so the whole ballgame was perceived to be in the certification motion. Yet with the courts consistently reaffirming the low bar for certification, we are seeing a greater number of class actions determined on their merits after certification. And as the recent case of Rebuck v Ford Motor Company shows, success on certification is by no means a guarantee of success on the merits.

Paul-Erik Veel | June 17, 2022

Is Increased Enforcement of the Competition Act Coming?

On February 8, 2022, the Competition Bureau released several recommendations for amending the Competition Act in its response to Senator Wetston’s call for submissions on Canada’s competition policy framework. The paper, entitled “Examining the Canadian Competition Act in the Digital Era”, identifies areas that the Competition Bureau believes are ripe for modernization. The paper, and Senator Wetston’s request for submissions, occur during a time when the federal government has indicated an openness to amending the Competition Act. While nothing in the Bureau’s submission has the force of law, the Bureau’s views on these matters will undoubtedly be taken very seriously, and some of the amendments the government is already considering mirror those in the Bureau’s submission. Consequently, the Bureau’s paper provides insight into the future direction of competition law in Canada.

Paul-Erik Veel & Katelyn Leonard | February 11, 2022

Competition Bureau Prioritizes Greenwashing: Keurig Fined $3 Million Over Recyclability Claims

The Competition Bureau’s focus on greenwashing continues to grow. This past week, the Bureau announced in a news release that it had reached a $3 million settlement agreement with Keurig Canada Inc. in respect of concerns over misleading and false claims about the recyclability of its single use Keurig K-Cup Pods. The agreement marks a growing trend in enforcement activities against “greenwashing”, the practice of making false or misleading environmental ads or claims about a product’s environmental benefits.

Paul-Erik Veel & Mari Galloway | January 12, 2022

Interventions at the Supreme Court of Canada: Is a More Robust Assessment Coming?

Interventions have long been extremely common at the Supreme Court of Canada. Most cases will have at least a few interveners while particularly high profile or contentious cases may have as many as 15 or 20. In Canada (Minister of Citizenship and Immigration) v Vavilov, for example, there were 24 groups of interveners, including the Attorneys General of four provinces.

Paul-Erik Veel | November 18, 2021

Did COVID-19 make it harder to get leave to the Supreme Court?

As many will know, Lenczner Slaght maintains an ongoing database of every application for leave to appeal to the Supreme Court of Canada that was decided from January 1, 2018 onward. We use this data to train a machine learning algorithm to predict the likelihood of cases getting leave, which we use for various purposes.

Paul-Erik Veel | June 11, 2021

The SCC Leave Project: Predictions for April 8, 2021

Here’s a look at the leave application decisions that the Supreme Court of Canada will be releasing on April 8, 2021.

Paul-Erik Veel | April 7, 2021

The SCC Leave Project: A Machine Learning Algorithm to Predict the Likelihood of Getting Leave to the Supreme Court of Canada

In the spring of 2020, we posted an analysis of the Supreme Court of Canada’s 2019 Year in Review and summarized some of the statistics found in that document. Unfortunately, the general statistics found in the 2019 Year Review were high level and limited the analysis we could provide about what was happening at the Supreme Court of Canada. We also could not find any publicly available and current datasets that would allow us to provide a more detailed analysis. 

Paul-Erik Veel | March 22, 2021

Getting Leave to Appeal to the Supreme Court: Empirical Insights from Tax Cases

As I have posted before, I’m a fan of using empirical data to inform legal practice. Much as the evidence-based medicine movement has taken hold in the field of medicine, the practice of law should, wherever possible, rely on objective data to inform our decision-making. Unfortunately, empirical legal work remains at an early stage. While there are some academics embracing empirical analysis, much of legal academic scholarship does not involve the quantitative analysis of empirical data. In my view, it is important for lawyers to test our intuitions whenever we can by reference to whatever data is available.

Paul-Erik Veel | January 20, 2021

I wish we were better strangers: Parliament’s proposed statutory cause of action for privacy breaches may attract class plaintiffs

Referring to living “in an era in which data is constantly flowing across borders”, Canada recently introduced Bill C-11. If enacted, it will radically alter the Canadian privacy litigation landscape. Bill C-11 contains the Consumer Privacy Protection Act (“CPPA” or the “Act”), and the Personal Information and Data Protection Tribunal Act (“PIDPTA”), and makes a number of consequential amendments to existing legislation. Bill C-11 would bring Canada closer to the European Union’s General Data Protection Regulation, which set the standard for data protection in the developed world.

Paul-Erik Veel | November 25, 2020

Waiver of tort is dead, long live waiver of tort!

Waiver of tort has long been a contentious subject in Canadian law. Many, many courts have permitted waiver of tort claims to proceed in class actions. Yet no court had definitively ruled as to whether waiver of tort in fact existed. It was for this reason that the Supreme Court of Canada’s decision in Atlantic Lottery Corporation v Babstock has been so highly anticipated. Most expected that the Supreme Court would finally answer whether a waiver of tort existed as an independent cause of action under Canadian law. This in turn would have significant consequences for many types of cases, including many types of class actions.

Paul-Erik Veel | July 24, 2020

Supreme Court Sides with Drivers in Uber Case; Deals Blow to Arbitration Clauses

The Supreme Court of Canada has released its highly anticipated decision in Uber Technologies Inc v Heller.

Chris Kinnear Hunter & Paul-Erik Veel | June 26, 2020

A Quantitative Look at the Supreme Court of Canada

Lawyers are trained to do close and careful reading of cases. We are experts in textual analysis of individual decisions, and we can spend hours arguing over what individual paragraphs in Supreme Court of Canada decisions mean. Yet while individual decisions are important, so are the aggregate trends. Quantitative data can reveal important information that lawyers can use to engage in more effective advocacy and better inform our clients as to what to expect.

Paul-Erik Veel | May 4, 2020

Do courts have jurisdiction to order virtual hearings? Absolutely!

The initial reaction of most Canadian courts in the face of the COVID-19 pandemic was to shut down completely. This undoubtedly made sense from a public health perspective. However, as the Ontario Superior Court of Justice noted in its recent practice direction, courts have “constitutional responsibility to ensure access to justice remains available”. Consequently, courts have been taking gradual steps towards reopening and allowing certain cases to be heard.

Scott Rollwagen, Sana Halwani & Paul-Erik Veel | April 7, 2020

Strict Requirements for Employers’ Overtime Policies in New Employment Law Class Action Decision

Is an employer obligated to pay overtime if they don’t specifically direct an employee to work overtime? And can an employer’s requirement that employees obtain pre-approval for any overtime they work shield them from the obligation to pay overtime if pre-approval isn’t obtained? These are important issues for any employer.

Paul-Erik Veel & Aoife Quinn | March 31, 2020

Bill 161: Much Needed Modernization for Class Actions in Ontario

On December 9, 2019, the Attorney General of Ontario introduced Bill 161, the Smarter and Stronger Justice Act, 2019. The new bill is omnibus legislation that proposes broad reforms to the legal system in Ontario. While the draft legislation will keep commentators busy for weeks or months, I focus here on one set of proposed reforms: those to the class actions regime in Ontario.

Paul-Erik Veel | December 10, 2019

Let it Rain: Supreme Court Green Lights Umbrella Purchaser Class Actions

On September 20, 2019, the Supreme Court released its long-awaited decision in Pioneer Corp v Godfrey. Godfrey is the Supreme Court’s latest decision involving price-fixing class actions, and expands on and clarifies the basic approach to these cases that the Court laid out six years ago in Pro-Sys Consultants Limited v Microsoft Corporation.

Paul-Erik Veel & Chris Kinnear Hunter | September 20, 2019

Class actions against investment advisors? Don’t bet on it

Class actions are common in the financial services sector. The relatively low bar for certification of such claims as class proceedings means that many such claims are certified. Yet certification is by no means automatic: where the litigation will not be significantly advanced through the resolution of common issues, courts will typically be reluctant to certify an action as a class proceeding.

Andrew Parley & Paul-Erik Veel | July 4, 2019

Once more unto the breach: the Supreme Court of Canada weighs in again on arbitration clauses and class actions

The question of whether and when arbitration clauses will preclude a class proceeding is seemingly continually litigated. In some circumstances—such as in the consumer protection context—legislatures have clarified that certain claims cannot be subject to arbitration. In other cases, however, it is up to courts to craft the appropriate rules. The recent decision of TELUS Communications Inc v Wellman shows that the question of what rules are appropriate can attract significant disagreement. In a 5-4 split decision, the majority of the Supreme Court of Canada held that valid arbitration clauses in contracts should generally be given effect and that persons with such contracts should not be included in class proceedings.

Paul-Erik Veel | April 5, 2019

Applying Foreign Law in Canadian Class Actions: A Novel Application of Old Principles in Das v George Weston Limited

On December 28, 2018, the Ontario Court of Appeal released its decision in the case of Das v George Weston Limited. At 114 pages, the Court’s decision is thoroughly reasoned and substantive.  It also deals with important issues that are significant to all class action practitioners. For those who don’t want to wade through the full sets of reasons—and there’s a lot there—here’s our summary of the key take-aways from the Court of Appeal’s decision.

Paul-Erik Veel | January 23, 2019

Proactively managing class action risk: the virtue of voluntary compensation

Product liability cases are routinely certified as class proceedings. Indeed, allegations that a product was negligently manufactured, or that a manufacturer failed to warn consumers of a particular risk, seem particularly amenable to resolution on a class-wide basis. However, not every such case is certified as a class proceeding. The recent decision of the Ontario Superior Court of Justice in Richardson v Samsung Electronics Canada Inc is one example of a case that was not certified. More importantly, it shows what steps defendants can proactively take to avoid certification of class actions against them.

Paul-Erik Veel | October 31, 2018

Pre-certification motions in class actions: are courts setting the bar too high for early and efficient disposition?

As I have observed before, class actions are expensive for defendants and resource-intensive for the justice system.  In order to try and minimize that expense, defendants typically want to dispose of class actions they face as early as possible.  This has given rise to a body of case law that addresses the question of when defendants will be allowed to bring pre-certificate motions.  As the recent decision of the Ontario Superior Court of Justice in Austin v Bell Canada shows, defendants face a high threshold in persuading the court to allow such motions to precede certification.

Paul-Erik Veel | July 4, 2018

Foreign Discovery in Advance of Certification in a Class Action? Not So Fast, says Divisional Court

Given the expansive discovery rights available under US law, plaintiffs may be tempted to try to use those rights in pursuit of proceedings under Canadian law. In its recent decision in Mancinelli v RBC, the Divisional Court placed an important limit on the ability of parties to do so. The Divisional Court upheld an order requiring plaintiffs in a proposed class action to obtain Court approval before taking any steps in furtherance of a subpoena issued by an American court.

Paul-Erik Veel & Chris Kinnear Hunter | April 27, 2018

Justice Perell Stays Proposed Class Proceeding against Uber, in Favour of Arbitration in the Netherlands - Heller v Uber Technologies Inc.

A long-standing issue in Canadian class actions law relates to the ability of parties to contract out of class actions and instead require that any disputes be submitted to arbitration. For class counsel and class members, such clauses are anathema, representing an attempt by sophisticated organizations to thwart class actions by requiring individual claims to proceed to arbitration. For businesses, such clauses have significant value; they can result in individual cases being resolved quickly and efficiently, without the complications and attendant costs of a class action. 

Paul-Erik Veel | March 28, 2018

Toll the death knell for class-based public interest privilege in competition proceedings?

The Competition Bureau relies heavily on voluntary cooperation from corporate Canada in order to enforce the Competition Act. Companies typically want assurances of confidentiality in order to cooperate with the Bureau. In recognition of the fact that companies are less likely to cooperate with the Competition Bureau if commercially sensitive information might be disclosed to third parties, the Competition Act provides a number of confidentiality protections for information acquired by the Bureau from third parties.

Paul-Erik Veel | February 6, 2018

Competing Fairly from a Monopoly Position: Six Things to Know about Abuse of Dominance After TREB

Under Canadian law, many provisions of the Competition Act can only be enforced by the Commissioner of Competition, and not by private parties. That has led to a dearth of jurisprudence, and certainty, regarding the interpretation of several provisions of the Competition Act. For that reason, both major businesses and industry groups will want to take careful note of the recent decision in Toronto Real Estate Board v Commissioner of Competition, where the Federal Court of Appeal gave further guidance as to when a party will be liable for abuse of dominance.

Paul-Erik Veel | December 8, 2017

Compelling disclosure from the Competition Bureau for use in class actions: where are we now?

A recurring source of challenging legal problems in the price-fixing class actions, and in class actions more generally, is the issue of what information and evidence the Courts can compel government investigators to provide to private litigants for use in those class actions.

Paul-Erik Veel | September 29, 2017

Ontario Updates International Commercial Arbitration Act

Ontario’s new legislation governing international commercial arbitration, the International Commercial Arbitration Act, 2017, came into force on March 22, 2017, replacing the International Commercial Arbitration Act previously in place.

Shara N. Roy, Paul-Erik Veel & Chris Kinnear Hunter | April 3, 2017

In contractual disputes, after-the-fact conduct is admissible after all

To most people, a contract is a written agreement, typically signed by all parties, that sets out what different parties promise to do.  But what happens that the written agreement is ambiguous?  Courts have long held that evidence of the “factual matrix” of the contract—that is, the surrounding circumstances that inform the context in which a contract is created—is admissible in the interpretation of a contract.  In its recent decision in Shewchuk v Blackmont Capital Inc, the Ontario Court of Appeal confirmed that evidence of subsequent conduct may also be admissible to interpret the agreement itself.

Peter Griffin & Paul-Erik Veel | December 8, 2016

Waiting forever for the axe to drop? Discoverability and the limitation period for Competition Act claims

The limitation period for claims under s. 36 of the Competition Act is a longstanding question of Canadian competition law.  The plain language of the statute suggests that such claims must be brought within two years of the anticompetitive conduct.  But in Fanshawe College of Applied Arts and Technology v AU Optronics Corporation, the Ontario Court of Appeal has reached a conclusion that is much more generous to Plaintiffs, holding that such claims must be brought within two years of the Plaintiff discovering the anticompetitive conduct.

Paul-Erik Veel | August 12, 2016

Want an injunction? It could cost you

An interlocutory injunction is a valuable tool to maintain the status quo between parties, pending the resolution of litigation.  Most disputes over whether an interlocutory injunction should be granted will depend on whether there will be “irreparable harm” if an injunction is not granted.  However, as Guelph Taxi v Guelph Police Service shows, it is also critical that the party seeking an injunction give a meaningful undertaking to pay damages if the injunction is granted but the party is ultimately unsuccessful.

Paul-Erik Veel | July 8, 2016

When does an Employer's Breach of Contract Make a Non-Competition Clause Unenforceable?

Non-competition clauses in employment agreements pose challenges for employers who seek to enforce them.  Non-competes have to be reasonable in scope at the time they are agreed to; a perpetual or geographically unlimited non-compete covering a broad range of competitors is almost certain to be unenforceable.  However, as the recent B.C. Supreme Court decision in P.R.I.S.M. v. Kramchynski highlights, an employer seeking to rely on a non-compete against a former employee must also uphold their obligations under their contract with that employee.

Paul-Erik Veel | May 30, 2016

When are costs awarded for travel disbursements for out-of-town lawyers?

Its trite law that an unsuccessful litigant generally pays the successful partys costs. But what happens when the winner hired lawyers from out-of-town who had to travel regularly for the case?

Paul-Erik Veel | November 28, 2014

BC Court Signals Change in Patent Landscape with Viagra Decision

The British Columbia Supreme Court's decision in Low v. Pfizer Canada Inc., 2014 BCSC 1469 could radically change the legal landscape for patent law in Canada. Patent law has thus far been entirely statutory rather than a product of the common law; courts had not recognized any common law rights or remedies in relation to patents. The decision of Justice Smith changes that, and in so doing changes the risks innovators must consider.

Paul-Erik Veel | September 18, 2014