Divisional Court Refuses to Hear Appeal of Certification in Evans v Bank of Nova Scotia

Regular readers of our blog will recall the proposed class action in Evans v Bank of Nova Scotia in which a rogue employee used confidential information that he accessed while employed by a bank to defraud a number of customers.  The defrauded customers sued the employee as well as the Bank, notwithstanding that the Bank immediately responded to the alleged criminal activity of its employee.  The action was initially certified, meaning that it could proceed as a class action (see our initial update on the certification decision here.)

The Bank sought leave to appeal to the Divisional Court the decision to certify the class.  The Bank challenged the certification on several grounds, primarily on the basis of alleged errors made by the certification judge.  However, the Divisional Court refused to grant leave to the Bank, a necessary preliminary step in having the appeal heard.  The Divisional Court found that it could not find good reason to doubt the correctness of the order certifying the class, and would therefore not grant leave.

The Bank may seek to have the decision not to grant leave reviewed by the Ontario Court of Appeal.  However, the general rule is that decisions to grant leave may not be appealed, except in a very limited number of cases.  Barring an extraordinary decision by the Court of Appeal, the heavy onus placed upon appellants in such circumstances means that it appears likely that Evans will proceed as a class action, following in the footsteps of other major class actions targeted at employers.

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