Class action legislation does not give courts jurisdiction over cases that would otherwise be dealt with by tribunals or arbitrators, the Supreme Court held in Concordia v. Bisaillon.

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Contributors: Michael Osborne , Jennifer Cantwell, Paul Emerson, Angela Yadav, Sonny Ingram, and Michael Binetti

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Rona keeps Sherbrooke store
In May, the Competition Tribunal rescinded a September 2003 consent agreement, allowing home improvement retailer Rona Inc. to keep the Sherbrooke , Quebec store it agreed to sell to gain Bureau approval of its acquisition of Réno-Dépot. The Tribunal found that Home Depot’s imminent arrival was a change in the circumstances that led to the consent agreement, and that the agreement would not have been made in the present circumstances. The Tribunal rejected the Commissioner’s arguments that it should refuse to rescind the agreement as a matter of discretion.

The Tribunal’s decision is the first time that the Competition Act’s variation / rescission provision (s. 106) has been applied to a consent agreement. Because consent agreements are negotiated and made by the parties, not the Tribunal, the Tribunal must look to the intentions of the parties. The Tribunal also emphasized that the Commissioner must be responsive to changing circumstances.

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In its recent unanimous decision in Pearson v. Inco., the Ontario Court of Appeal overturned the decision of Superior Court Justice Ian Nordheimer that had refused to certify an environmental class proceeding against Inco Ltd. and made a substantial costs award against the representative plaintiff that many observers characterized as having a ‘chilling’ effect on future class proceedings.

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In a unanimous decision written by Laskin JA and released late yesterday, the Ontario Court of Appeal overturned Canada’s first-ever class action judgment in favour of investors arising from misrepresentations by a corporation prior to its initial public offering (“IPO”).

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Last summer, in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co., the Ontario Court of Appeal overturned its own decision on a question of law it decided just a few years ago in McNaughton Automotive Ltd. v. Co-operators General Insurance Co. In so doing, the Court wrestled with whether and when it could, or should, overrule one of its past decisions.

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