Case information

Judgments and orders — Certification orders — Denial of certification — Whether order denying certification final or interlocutory — Nature of “final order” under Canadian common law — When no-merits certification orders attract res judicata.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Ms. David and her co-plaintiffs began a class action against a number of defendants alleging that producers and retailers in the packaged bread market had engaged in price fixing. On December 31, 2021, Morgan J. certified the class as against some parties in respect of the claims of direct and indirect purchasers of packaged bread, naming the applicants here as the representative plaintiffs, but dismissed the certification motion against Maple Leaf Foods Inc. and others: 2021 ONSC 7331. He found that nothing supported any cause of action against Maple Leaf. This order was appealed in relation to other defendants, but not in relation to Maple Leaf: David v. Loblaw, 2024 ONSC 1157 (Div. Ct.), aff’d 2022 ONCA 833.

In 2024, the representative plaintiffs moved to amend the Certification Order to certify the action against Maple Leaf based on evidence and information said to be new. That evidence and information was set out in their Fourth Fresh as Amended Statement of Claim (an Agreed Statement of Facts made in relation to a guilty plea on charges under the Competition Act, R.S.C. 1985, c. C-34, against Canada Bread, an information to obtain against Maple Leaf’s CEO, who had previously been Canada Bread’s CEO, and Maple Leaf’s annual reports) and a Fifth Fresh as Amended Statement of Claim (emails in which Canada Bread or Maple Leaf corresponded with other defendants involved in the claim, and which the representative plaintiffs received in November 2023), both of which asserted the same causes of action against Maple Leaf.

The chambers judge dismissed the representative plaintiffs’ motion to amend or reconsider the certification of the action as against Maple Leaf, struck the Fourth and Fifth Fresh as Amended Statements of Claim as they related to Maple Leaf, and granted Maple Leaf’s motion to exclude the emails, the agreed statement of facts, the annual reports, and all other records sought to be admitted into evidence on the grounds that it was all inadmissible. The Court of Appeal dismissed the appeals, declining to make any order regarding the crossclaim and referring any issue concerning it or any other procedure by which Canada Bread sought to claim over against Maple Leaf to the Superior Court.