April 2005

My associates and I have been slaving over hot computers to get out the bi-annual update to the textbook, so look for that in your mailboxes over the next couple of months. If you haven't ordered your own copy yet, visit
It is guaranteed to keep you informed on the latest class action issues (or to put your kids to sleep in record time!).
In the meantime, we set out below the breaking news from the last couple of months to tide you over.
Also, if you ever delete these email updates (how could you?!), you will be pleased to know that we have set up a "blog" at which all the historical email updates will be posted. The blog is found at:

Attached is a brochure for upcoming seminar on litigation against the government at which the writer will be speaking. We hope to see you there!

In Parsons v. McDonalds, [2005] O.J. No. 506 (C.A.), the Ontario Court of Appeal affirmed that a US class settlement did not bind Canadians due to weaknesses in the scope of the notice program. However, more importantly, the court affirmed that it is prepared to enforce US class actions that include Canadians so long as jurisdiction and due process concerns are met. For a copy of our office's paper discussing the lower court decision see:

In Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp. [2005] J.Q. no 607, the Quebec court approved a class action against the tobacco companies. This is another clear example of the lower certification standard in Quebec, given that a similar class action was denied certification in Ontario.

In Knight v Imperial Tobacco, 2005 BCSC 172, the court certified a "lite cigarette" class action. Klein Lyons is counsel for the class. Their decision to restrict the claim to statutory economic claims clearly assisted in pushing the balance in favour of certification.

The fen-phen lawsuit, Wilson v. Servier Canada Inc. [2005] O.J. No. 1039 (S.C.J.), has finally settled. You can hear the weeping emanating from the Bay Street towers from here.
A settlement was also approved in the long running Hoy v. Medtronic saga on April 1. The writer was counsel for the class. Details can be found on our office's website.

The court certified an institutional abuse class action in W.J.R. v. British Columbia , 2005 BCSC 372, [2005] B.C.J. No. 561. The writer was counsel for the defendant Province. Details can be found on someone else's website. Wound-licking can be found occurring in our office.

The B.C. Supreme Court rejected a class action filed against B.C. payday lenders over allegedly high interest rates. Madame Justice Brenda Brown ruled that the lawsuit did not meet the criteria for a class action. The lawsuit named 18 different payday loan businesses and alleged the companies violated the federal criminal code by charging annual interest rates exceeding 60 per cent. The writer acted for an array of the defendant companies (batting .500 for the month!): See MacKinnon v. Moneymart, 2005 BCSC 271.

Roughly 200 owners of suites in an underperforming Richmond hotel were granted class-action certification in their civil case by the B.C. Supreme Court. They claim management was in a conflict-of-interest position when they allegedly shuffled guests to a competing hotel: See Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. , [2005] B.C.J. No. 347

On a motion by the defendant tractor manufacturer in a proposed class alleging defects in tractor tracks, the court agreed that the track supplier was "a party of significant interest to the certification application" and ordered that the supplier be added as a defendant for the purposes of the certification: Sorotski v. CNH Global N.V., [2005] S.J. No. 174 (Q.B.)

In James v. BC, 2005 BCCA 136, the court dismissed an appeal of the order certifying this employee benefits class action.

The aftermarket parts certification order of Nordheimer J. dated November 22, 2004 was upheld as leave to appeal was denied. No reasons were given by the hearing judge, Matlow J.

In Bouchard v. Agropur, 2004 QJ 13863, the court refused to certify a class action alleging that milk distributed in Quebec contained less fat content that represented (this would never happen in B.C.!). The court concluded that the case should be dismissed against many of the defendants because the plaintiff had not dealt with their dairies. The court also found that the cause of action standard was not met and dismissed the case generally. So Ragoonanan now has some support in Quebec.

In Vitapharm v. F. Hoffman La Roche, 2005 OJ 1117 (S.C.J.) and 2005 OJ 1118 (S.C.J.) the court approved settlement in an array of the vitamin price-fixing cases.

In a decision rendered by Buffoni J. on Feb. 17 the court certified a class action seeking a permanent injunction and damages with respect to the management of criminal records by the police: Ostiguy v. AG Quebec.

In Ragoonanan v. Imperial Tobacco (March 9, 2005), the court declined to grant summary judgment in favour of the defendants, stating that there was sufficient evidence to meet the low threshold.

In earlier reasons, the court ordered disclosure of the full names and last known addresses of children set out in police records on the basis they had waived their privacy rights. On receiving further argument, the court found that it was in error in concluding that a waiver had occurred, and deleted that component of the order. The writer acted as counsel for the Province: Griffith v. Winter, 2004 BCSC 1781.

In Fakhri v. Wild Oats Markets Canada, Inc., 2005 BCSC 282, the Plaintiffs sought summary judgment on behalf of part of the class who actually had a contractual relationship with the defendant. The court found that there was too much overlap between contractual and negligence claims making summary determination of contractual claims inappropriate.

The bingo license fee challenge Nanaimo Immigrant Settlement Society v. BC has died as leave to reconsider the merits decision was denied by SCC.
The plaintiffs in the two proposed class action lawsuits brought on behalf of BCI common shareholders and seeking $1 billion in damages against BCI and BCE, which were previously dismissed by the Ontario Court of Appeal, were refused leave to appeal by the Supreme Court of Canada.

As previously reported, the Jericho Hill class action was settled after a number of years of litigation and the court gave its approval to the settlement in April 2004. In January 2005, four individuals applied to be added to the class for the purpose of participating in the settlement. Each of those persons had received compensation under the JIPC, ranging in amount between $20,000 and $30,000. The application was dismissed. The order approving the settlement had been entered. The class action was concluded. Even if the court were to find that accepting compensation from the JICP or related matters were mere technicalities to be overcome by a general view of fairness, the court held that it was functus. In any event, those matters were not mere technicalities: See Rumley v. BC, 2005 BCSC 189.

The motion by the banks to strike a proposed consumer rights class action in advance of certification was denied. Leave to take the issue to the SCC was also refused: Bank of Montreal, et al. v. Attorney General of Quebec, et al. (Que. C.A., September 28, 2004) (30645).

Tobacco companies sought over $1.2 million in costs against the plaintiffs and their lawyers (Sommers & Roth) as a result of the failed certification motion. They were awarded zero. The tobacco companies alleged that their defence costs were needlessly driven up by Plaintiff lawyers who were the real "powers" behind the suit. They argued that the lawyers who brought the suit must bear the brunt of the tobacco firms' defence costs. The Plaintiffs argued that awarding costs against them and their lawyers would ensure that no one would pursue the tobacco companies again in a class action. The Plaintiffs further maintained that the suit was brought by smokers with real health problems and that the suit was a matter of public interest. The Plaintiffs also argued that tobacco companies have long tended to adopt "scorched earth" legal tactics to ensure that those who sued them would run out of money.
In awarding no costs to the tobacco companies, Justice Winkler concluded that the proceeding raised novel points of law. Firstly, his Honour found that the class action was commenced when class actions were relatively new in Canada. Secondly, the court held that the claim that the tobacco companies were involved in a conspiracy was a novel legal issue. Justice Winkler also found that the class action involved a matter of public interest.
In particular, His Honour determined that the action had special significance for the community at large and beyond the members of the proposed class. The fact that the tobacco industry is heavily regulated in Canada was a major factor substantiating his finding that there was a strong public interest component in the case. Justice Winkler also stated that the case engaged a strong behaviour modification aspect, mainly due to the fact that the claim had been brought by four Plaintiffs with modest individual losses who were seeking to represent a much larger group of millions of smokers in Ontario.
Justice Winkler stated that he was entitled "to take judicial notice of the fact that the use of tobacco products is considered to constitute a serious risk to the health of the public in this province and elsewhere in Canada". His Honour also stated that "any proceeding that might have the effect of either curtailing the use of those products or visiting the health costs of their use on the defendants rather than the public at large" clearly raised issues that went beyond the interests of the class. He added that the case was "of some specific societal significance to residents in Ontario and the rest of Canada".

The court denied an effort by the Hudson's Bay Company to dismiss a class-action lawsuit brought against it by 1,000 Kmart workers terminated after their company merged with the defendant in 1998. The defendant sought to have the lawsuit seeking severance pay for laid-off workers dropped because the case had not been advanced by a number of previous motions or proceedings. See [2005] O.J. No. 449 (S.C.J.)

Although Quebec courts generally love class actions, there is still some hope for defendants. In Lallier v. Volkswagen, (February 8, 2005), the court refused to certify a class action alleging defects in the defendants' vehicles on the basis that there was too much variety between the models involved.

Similarly, another area where Quebec courts don't seem to like class actions is in relation to noise. In Dorion v. CNR, 2005 QJ 1410 (S.C.) the court refused certification of this railway noise case.

In Howarth v. DPM Securities Inc., 2005 QJ 1083 (S.C.), the court reviewed the principles involved in the peculiar Quebec issue of the extent to which the statement of claim must dovetail with the earlier certification order.

In Vernon v. General Motors of Canada Ltd. [2005] O.J. No. 486 (C.A.) the court confirmed that the dispute raised by the proposed class action should be determined under the collective agreement, and not through the civil courts.

In Potter v. Bank of Canada [2005] O.J. No. 772 (S.C.J.) the court was asked to rule on the appropriate timing of the certification motion and defendant’s motions for dismissal and to strike portions of the Statement of Claim. The court held as follows: "I am of the view that it would be more efficient and in the interests of justice if the Bank's motion were heard and decided first. Depending on the result, the hearing of the certification motion may be entirely avoided or the length of the certification motion may be substantially shortened."

See Kanagaratman v. Li, 2005 OJ 771. Koskie Minsky acts for the class.

In Cassano v. Toronto-Dominion Bank [2005] O.J. No. 845 (S.C.J.) the court refused certification of a class action against TD challenging its right to set exchange rates. The court held that damages could not be determined on a class wide basis, and that the plaintiff had failed to show that there was a manageable way of determining damages individually. The court stated: "The principle of stare decisis is likely to be more powerful than the limitations that are attached to those of res judicata and issue estoppel if the decision on the first of the common issues was obtained in an individual proceeding commenced by any cardholder"

See Assoc. provinciale des retraités d'Hydro-Québec c. Hydro-Québec, [2005] J.Q. no 1644

Settlement of a premium offset lawsuit has been announced by Quebec insurer La Capitale MFQ. Yves Lauzon acts for the proposed class. Interestingly, the court had already rejected an earlier class action lawsuit by the same firm using a different plaintiff.
Settlement of the class action against Air Transat in relation to the forced landing of Flight TS236 has been announced. Camp Fiorante Matthews acts for the class. The settlement is for $7.6 million.
Easyhome Ltd. announced that subject to court approval it has settled a class action lawsuit that was commenced in April, 2004 for the restitution of rent and fees charged to easyhome customers, which were alleged to have constituted interest charged in excess of the maximum rate prescribed by the Criminal Code of Canada.

An array of class actions have been filed in Hull by Saskatchewan lawyer Tony Merchant including:
Pawlachuk v. BCE Inc.
Rosa v. Sunquest
Brock v. Merck Frosst
Droyer v. Sears Canada
Kruger v. Pfizer Canada
Bethel v. Lord Conrad Black and
Blanchett v. Bell Canada
A Quebec farmer hopes to secure court approval for a class-action suit against the federal government and animal feed company Ridley Inc. over mad cow disease and the U.S. ban on Canadian beef exports. Donald Berneche of St-Gabriel-de-Brandon, Que., alleges that Canadian authorities delayed in prohibiting the addition of meat and bone meal from ruminant animals in cattle feed. This, he argues, made it possible for a case of bovine spongiform encephalopathy to be found in an Alberta cow in 2003, causing the U.S. border closure against Canadian cattle and beef. The cow, born in the spring of 1997, became infected with BSE soon after being fed with Ridley's products, Berneche alleged. The case seeks certification as a class action on behalf of all affected farmers in the province.
A new action alleges DaimlerChrysler Canada Inc. failed to notify consumers of defects on certain models that resulted in "catastrophic failures" of the cars' steering systems. The suit, filed by Quebec firm Siskinds Desmeules against DaimlerChrysler Corp. and its Canadian division, alleges Chrysler was aware of a faulty steering system after "thousands" of consumer complaints across North America, but did not tell consumers of necessary repairs or issue a recall.

British Columbia:
Press reports indicate that a class action lawsuit has been commenced by Canadian Taxpayers' Federation against the Hospital Employees Union for damages caused as a result of alleged illegal strike action.
Other cases filed since our last report include:
R.N. Parton Ltd. v. Bayer Inc.: Rubber chemicals price-fixing case filed by Poyner Baxter.
Birrell v. Providence Health Care: Infected materials at BC Ear bank. Klein Lyons is counsel for the prospective class.
R.N. Parton Ltd. v. Bayer: Price fixing
Castellani v. Hoffmann La-Roche et al: Accutane class action filed by Michael Dunn.
Smith v. Vancouver City Savings: Criminal interest rates Pro-Sys Consultants v. Infineon Technologies: Dynamic random access memory Bodnar v. Community Savings: Criminal interest rates Pro-Sys Consultants v. Microsoft: Abuse of dominant position Erickson v. Nan Ya Plastics Corporation et al: Polyester staple price fixing
Class actions have been commenced in BC and Alberta by Bruce Lemer against Telus for charges for incoming calls that begin even before the phone starts ringing.

The firm of Stevensons Barristers announced that it has commenced a class action in the Court of Queen's Bench of Alberta against Eli Lilly & Company and Eli Lilly Canada Inc., the makers and distributors of Zyprexa, for damages claiming $900,000,000.00. This action is similar to the one which has been brought in the Ontario Superior Court on behalf of all persons in Canada who were prescribed Zyprexa and who became diabetic as a result of taking that drug. The lawyers for the plaintiff, Harvin Pitch, counsel to Stevensons Barristers, and Colin Stevenson intend to work with law firms across Canada and the United States in pursuing this claim and other similar claims against the manufacturers and distributors of Zyprexa, Eli Lilly & Company and Eli Lilly Canada Inc.

Ontario: Investors who bought hedge funds from troubled Portus Alternative Asset Management Inc. launched a $240-million class-action lawsuit against Manulife Securities International, the dealer that recommended the investment.
Class actions have been launched against Aviva Canada Inc. ("Aviva"), Lombard General Insurance Company of Canada ("Lombard") and Royal & Sun Alliance Insurance Company of Canada ("Royal"). The lawsuits allege that Aviva, Lombard and Royal wrongfully denied commercial insurance claims for perished stock and business interruption losses caused by the August 2003 Blackout.

« June 2005 | Main | February 2005 »

Reader Comments (37)

Nice job on the blog.

September 25, 2005 | Unregistered CommenterMargaret Wood

What? -the" REL="nofollow"> payday loan guy

October 2, 2005 | Unregistered Commenterpayday loan

How would you like to own a custom-built house at a 42% to 100% discount? Find out how today by visiting" REL="nofollow">

October 4, 2005 | Unregistered CommenterGet-A-Free-House

Great job! Another decent payday loan site to add to my list! Hope you don't mind I leave mine here," REL="nofollow">sonic payday loan

October 4, 2005 | Unregistered CommenterDr. X

Great job! Another decent payday loan site to add to my list! Hope you don't mind I leave mine here," REL="nofollow">fast cash payday loan

October 4, 2005 | Unregistered CommenterDr. X

Great job! Another decent payday loan site to add to my list! Hope you don't mind I leave mine here," REL="nofollow">payday loan canada

October 4, 2005 | Unregistered CommenterDr. X

Great job! Another decent payday loan site to add to my list! Hope you don't mind I leave mine here," REL="nofollow">ez payday loan

October 4, 2005 | Unregistered CommenterDr. X

Your blog is excellent - keep it up! Don't miss visiting this site about" REL="nofollow">military loan. It pretty much covers military loan related stuff.

October 7, 2005 | Unregistered Commenterheropoo

I found a good" REL="nofollow">no faxing payday loan site. I am looking into it myself.

October 7, 2005 | Unregistered Commenterhexadecimals resources

Good" REL="nofollow">volkswagen trike post!

October 18, 2005 | Unregistered Commenterbrian

I just started a" REL="nofollow">golf holidays blog

October 18, 2005 | Unregistered Commenterautocounsel

Hello, just visited your blog, it's geat. I also have a" REL="nofollow">automobile loan related blog with some useful articles about the topic. Hope that it is helpful to you.

October 20, 2005 | Unregistered CommenterJohnny

Hello, just visited your blog, it's geat. I also have a" REL="nofollow">bad credit home equity loan related blog with some useful articles about the topic. Hope that it is helpful to you.

October 20, 2005 | Unregistered CommenterJohnny

Yo, This blog is pretty neat. You should check out mine sometime. It pretty much covers" REL="nofollow">opt in email marketing related stuff.

October 21, 2005 | Unregistered CommenterJohnjon

Nice cheap loan blog. I found this cheap loan site interesting. You should check it out..." REL="nofollow">**LoanLearner**

October 22, 2005 | Unregistered CommenterThe Coupon Guru

good morning,

great day to be taking vitamin supplement

have you seen" REL="nofollow">vitamin supplement

take a trip and check out what they know about vitamin supplement

October 22, 2005 | Unregistered Commentercoolhealth

Great site. I am very interested in" REL="nofollow">consumer credit consuling and have also tried to set up an informative site about" REL="nofollow">consumer credit consuling please feel free to check it out and make any suggestions.

October 22, 2005 | Unregistered Commenterblaze

Cool blog you have. I have a cash advance payday loan related site. Check it out if you get a chance. The URL is" REL="nofollow">cash advance payday loan

October 26, 2005 | Unregistered CommenterSwingin80

Cool blog you have. I have a paperless payday loan related site. Check it out if you get a chance. The URL is" REL="nofollow">paperless payday loan

October 26, 2005 | Unregistered CommenterSwingin80

Great blog! I often write about savings account payday loan. Check out my" REL="nofollow">savings account payday loan site. It mostly deals with savings account payday loan.

October 27, 2005 | Unregistered CommenterMike

Hey, you have a great blog here! I'm definitely going to bookmark you!

I have a" REL="nofollow">internet banner advertising site/blog. It pretty much covers internet banner advertising related stuff.

Come and check it out if you get time :-)

October 29, 2005 | Unregistered CommenterBrian

The U.S. Government is the nation's largest provider of financial assistance to women & minority owned small businesses. The U.S. Small Business Administration (SBA) is Congressionally mandated to assist the nation’s small businesses in meeting their financing needs. The SBA has small business loan programs and services to meet most small business needs. More information on U.S. Government Small Business Loans can be found at" REL="nofollow">****

How do Government SBA Small Business Loans work?

When a small business owner applies to a lending institution for a business loan, the lender reviews the application and decides if it merits a busiuness loan or if it requires an SBA guaranty. SBA backing on the business loan is then requested by the lender. In guaranteeing the business loan, the SBA assures the lender that, in the event the borrower does not repay the loan, the government will reimburse the lender for its loss. By providing this guaranty, the Small Business Administration helps tens of thousands of small business owners get financing they would not otherwise obtain.

How much money can I borrow?

Here are a few examples of what you can get from SBA small business loans programs:

7(a) Loan Guaranty Program

The 7(a) Loan Guaranty Program is the SBA's primary small business loan program. A maximum loan amount of $2 million has been established for 7(a) business loans.

Low Documentation Loan (SBALowDoc)

SBALowDoc is the SBA’s quick and easy program that provides a guaranty on small business loans of $150,000 or less. Once you have met your lender’s requirements for credit, the lender may request an SBALowDoc guaranty for up to 85 percent of the loan amount. You complete the front of a one-page SBA application, and the lender completes the back. At SBALowDoc centers, the agency processes completed applications within 36 hours.


This method makes it easier and faster for lenders to provide small business loans of $250,000 or less. The SBA provides a rapid response through its PLP processing center in Sacramento, Calif.— within 36 hours of receiving the complete application package. Lenders use their own procedures to approve and service the loans.


The CommunityExpress pilot program is designed to spur economic development and job creation in untapped rural and inner city communities by providing loans and technical assistance. Loan proceeds may be used for most business purposes, including start-up, expansion, equipment purchases, working capital, inventory or real-estate acquisitions.
To be eligible for CommunityExpress, current or prospective small businesses must be located in low- and moderate-income urban and rural areas.

While CommunityExpress is similar to SBAExpress, here are some differences:

• CommunityExpress focuses on predesignated geographic areas that primarily low- and moderate-income urban and rural areas.

• The maximum loan amount under CommunityExpress is $250,000.

• CommunityExpress lenders, together with the National Community Reinvestment Coalition, provide hands-on technical training and support, both before and after loan closings, through community-based, nonprofit NCRC member organizations.

7(m) Microloan Program

The SBA’s Microloan Program provides very small loans up to $35,000 to small businesses and not-for-profit child-care centers through a network of locally based intermediary lenders. In addition to making the loans, the intermediaries provide management and technical assistance to microborrowers and potential microborrowers.

What can I use the loan proceeds for?

You can use an SBA small business loan to:

• expand or renovate facilities;
• purchase machinery, equipment, fixtures and leasehold improvements;
• finance receivables and augment working capital;
• refinance existing debt (with compelling reason);
• finance seasonal lines of credit;
• construct commercial buildings; and/or
• purchase land or buildings.

How do I repay the loan?

The length of time for repayment depends on the use of the loan proceeds and the ability of your small business to repay the loan.The term is usually 5 to 10 years for working capital, and up to 25 years for fixed assets such as the purchase or major renovation of real estate or purchase of equipment. There are no balloon payments, prepayment penalties, application fees or points permitted with these small business loans. Repayment plans may be tailored to each individual small business.

How do I get started?

You submit a business loan application to a lender for initial review. If the lender approves the business loan subject to an SBA guaranty, a copy of the loan application and a credit analysis are forwarded by the lender to the nearest SBA office. After SBA approval, the lending institution closes the business loan and disburses the funds; you make monthly loan payments directly to the lender. As with any loan, you are responsible for repaying the full amount of the loan. Visit" REL="nofollow">**** for more info.

October 31, 2005 | Unregistered CommenterEQ

Wow, I really like this one. I have a website that talks mostly about" REL="nofollow">online email marketing You should check it out sometime.

November 1, 2005 | Unregistered CommenterJohnjon

Hello, this is a great blog on online loan, Please visit my site when you get a chance at" REL="nofollow">

November 3, 2005 | Unregistered CommenterGoodman441

Just read your blog. Very interesting, I will be sute to bookmark it. Perhaps if you get time you could visit my" REL="nofollow">payday loan company site.

November 3, 2005 | Unregistered Commenterstartonline

PostPost a New Comment

Enter your information below to add a new comment.
Author Email (optional):
Author URL (optional):
All HTML will be escaped. Textile formatting is allowed.